IP-NRLF 


TT 
O 


DO 


AN 


EULOGY 


ON  THE 


LIFE    AND   CHARACTER 


OF 


JOHN    MARSHALL, 

(Eftfef  Justice  of  the  Supreme  <Brottrt 


OP  THE 


UNITED   STATES. 


DELIVERED   AT  THE  REQUEST  OF  THE  COUNCILS  OF  PHILADELPHIA, 
ON  THE  24TH  SEPTEMBER,  1835. 


BY    HORACE    BINNEY. 


PHILADELPHIA: 

PRINTED   BY  .1.   CRISSY   AND  G.  GOODMAN,  4  MINOR  STREET. 

1835. 


IN  SELECT  COUNCIL, 

July  9,  1835. 

WHEREAS  means  have  been  already  taken  to  express  the 
public  sense  of  the  loss  which  the  country  has  sustained,  by 
the  death  of  the  late  Chief  Justice  of  the  Supreme  Court 
of  the  United  States,  and  the  profound  grief  which  has 
affected  the  community:  And  whereas,  it  is  fit  that  the 
actions,  character  and  services  of  the  illustrious  dead  should 
be  adequately  pourtrayed  and  commemorated  :  Therefore, 

Resolved,  by  the  Select  and  Common  Councils,  that 
HORACE  BINNEY,  Esq.  be  invited  to  deliver  an  Eulogium 
on  the  life  of  JOHN  MARSHALL. 

Common  Council  concurred. 

from  the  Minutes. 

Jos.  G.  CLARKSON, 

Clerk  S.  C. 


Ml  fin 


IN   COMMON   COUNCIL, 

September  9A,  1835. 

Resolved,  That  the  thanks  of  the  Select  and  Common 
Councils,  be  presented  to  the  Hon.  HORACE  BINNEY,  for 
his  appropriate  and  eloquent  Eulogy  on  the  life  and  char 
acter  of  the  late  CHIEF  JUSTICE  MARSHALL,  and  that  a  copy 
be  requested  for  publication. 

Resolved,  That  the  thanks  of  the  Select  and  Common 
Councils,  be  presented  to  the  Right  Rev.  WILLIAM  WHITE, 
D.  D.  for  the  gratifying  part  which  he  bore  in  the  solemni 
ties  of  the  occasion,  and  that  he  be  requested  to  furnish  a 
copy  of  his  prayer,  to  be  published  with  the  proceedings 
of  the  day. 

Select  Council  concurred. 

From  the  Minutes. 

ROBERT  HARE,  Jr. 

Clerk  C.  C. 


SEPTEMBER  26,  1835. 
RT.  REV.  SIR, 

We  have  been  directed  to  communicate  to  you 
the  annexed  resolution,  unanimously  adopted  by  the  Select 
and  Common  Councils,  testifying  their  deep  sense  of  their 
obligation  for  the  part  you  bore  in  the  solemnities  of  the 
24th  inst.,  and  requesting  you  would  favour  them  with  a 
copy  for  publication,  of  the  appropriate  and  eloquent  prayer 
by  which  the  address  of  Mr.  Binney  was  preceded. 

We  congratulate  ourselves,  Right  Rev.  Sir,  that  in  paying 
this  tribute  to  the  memory  of  Chief  Justice  Marshall,  we 
were  honoured  with  the  aid  of  one  of  his  contemporaries, 
like  himself  distinguished  by  the  talents  that  adorn,  and  the 
virtues  that  dignify  our  nature. 

With  the  highest  respect, 

We  remain  your 
Obt.  Serv'ts. 

Jos.  R.  CHANDLER, 
HENRY  J.  WILLIAMS, 
LEMUEL  LAMB, 


DENNIS  M'CREDY, 
JOSHUA  LIPPINCOTT, 
JOHN  P.  WETHERILL, 


To  the  Rt.  Rev.    William    White,  D.  D. 
Bishop  of  the  Diocese  of  Pennsylvania. 


TO  MESSRS.  JOSEPH  R.  CHANDLEK,  HENRY  J,  WILLIAMS,  LEMUEL 
LAMB,  DENNIS  M'CREDY,  JOSHUA  LIPPINCOTT,  AND  JOHN  P. 
WETHERILL. 

GENTLEMEN, 

I  enclose  to  you  the  document,  which  the  Select 
and  Common  Councils  of  the  City  have  done  me  the 
honour  to  desire. 

And  I  am,  very  respectfully,  gentlemen, 
Your  very  humble  Servant, 

WM.  WHITE. 


9 


SEPTEMBER  26,  1835. 
SIR, 

We  have  the  honour  to  enclose  a  resolution,  unani 
mously  adopted  by  the  Select  and  Common  Councils, 
expressing  their  thanks  for  your  admirable  Eulogy  on  the 
late  Chief  Justice  Marshall,  and  requesting  a  copy  for 
publication. 

The  personal  history  of  such  a  man,  always  highly  in 
teresting  and  instructive,  is  at  the  present  moment  most 
peculiarly  so ;  and  you,  sir,  have  rendered  the  lessons  it 
affords  still  more  effective,  by  the  force  and  beauty  with 
which  they  are  illustrated. 

We  have  the  honour  to  be, 
With  the  greatest  respect, 
Your  obt.  Serv'ts* 


Jos.  R.  CHANDLER, 
HENRY  J.  WILLIAMS, 
LEMUEL  LAMB, 
DENNIS  M'CREDY, 
JOSHUA  LIPPINCOTT, 

JOHN  P.  WETHERILL,    _ 
To  H.  BINNEY,  Esa. 


10 


PHILADELPHIA,  SEPT.  29,  1835. 
GENTLEMEN, 

I  have  the  pleasure  to  send  you  the  Eulogy  upon 
Chief  Justice  Marshall,  agreeably  to  the  resolution  of  the 
Councils,  and  to  return  my  unfeigned  thanks  for  the  honour 
which  those  bodies  and  their  committee  have  done  me, 
by  all  their  proceedings  and  expressions  in  relation  to  the 
subject. 

1  have  the  honour  to  be, 
With  sincere  respect, 

Your  obt.  serv't. 


HOR.  BlNNEY. 


TO 

JOSEPH  R.  CHANDLER, 
HENRY  J.  WILLIAMS, 
LEMUEL  LAMB, 
DENNIS  M'CREDT, 
JOSHUA  LIPPINCOTT, 
JOHN  P.  WETHERILL, 


>     ESQUIRES. 


11 


AN  ADDRESS 

AND    A   FORM    OF    PRAYER, 

ON  THE  OCCASION  OF  THE  DECEASE  OF  THE  HON.  JOHN  MARSHALL,  ESQ. 
LATE  CHIEF  JUSTICE  OF  THE  UNITED  STATES,  DELIVERED  ON  THE 
24TH  DAY  OF  SEPTEMBER,  AND  PRECEDING  THE  DELIVERY  OF  AN 
EULOGIUM  BY  HORACE  BINNEY,  ESQ. 

Brethren, 

Forasmuch  as  it  hath  pleased  Almighty  God,  in 
his  wise  Providence,  to  take  out  of  this  world  the  Hon. 
John  Marshall,  Esq.  late  Chief  Justice  of  the  United  States, 
let  us  bow  in  lowly  submission  under  this  afflictive  dispen 
sation.  Let  us  offer  up  our  thanksgivings,  for  the  good 
example,  and  for  the  signal  services  of  the  eminent  deceased. 
And  let  us  pray,  that  through  Divine  Grace,  we  may  make 
a  religious  improvement  of  the  mournful  event  commemo 
rated  ;  so  that  after  this  transitory  life  shall  be  ended,  we 
may  rest  with  the  Spirits  of  just  men  made  perfect;  and 
finally  may  attain  to  the  resurrection  of  the  righteous,  at  the 
second  coming  of  our  Lord  and  Saviour  Jesus  Christ,  in 
glorious  majesty,  to  judge  the  world. 

Almighty  God,  with  whom  do  live  the  Spirits  of  them 
who  depart  hence,  in  the  Lord,  and  with  whom  the  souls 
of  the  faithful,  after  they  are  delivered  from  the  burthen  of 


12 


the  flesh,  are  in  joy  and  felicity ;  we  give  thee  thanks  for  all 
those  thy  servants,  who  having  finished  their  course  in  faith, 
do  now  rest  from  their  labours.  Especially  we  adore  thy 
name,  for  the  eminent  virtues  and  for  the  illustrious  actions 
of  the  late  Chief  Justice  of  the  United  States.  While  we 
acknowledge  thy  undeserved  mercies  in  having  given  him, 
in  times  of  difficulty  and  danger,  to  the  counsels  and  to  the 
administration  of  justice  in  this  land,  we  pray  that  the 
present  remembrance  of  him  may  impress  us  with  due 
gratitude  for  the  benefits,  which  through  his  agency,  have 
been  extended  to  us  by  thee,  the  Supreme  Author  of  all 
good.  May  his  memory  be  an  incentive  to  all  who  shall 
come  after  him  in  our  Courts  of  Justice,  and  in  ah1  the 
employments  of  the  state.  And  may  posterity,  while  they 
shall  inherit  the  lustre  of  his  name,  enjoy  the  benefit  of  his 
life,  in  a  continuance  of  the  happy  consequences  of  his 
labours,  and  in  a  succession  of  great  and  good  men,  to  the 
glory  of  thy  name,  and  to  the  prosperity  of  thy  people,  to 
the  end  of  time.  We  pray  also  that  we,  with  all  thy  ser 
vants  who  have  departed  this  life  in  the  faith  and  the  fear  of 
thy  holy  name,  may  rest  in  thee,  and  have  at  last  our  perfect 
consummation  of  bliss  in  body  and  in  soul  in  thy  eternal 
kingdom,  through  Jesus  Christ  our  Lord.  Amen. 

O  God,  whose  days  are  without  end,  make  us,  we  be 
seech  thee,  sensible  of  the  shortness  and  of  the  uncertainty 
of  this  mortal  life ;  and  may  we  be  resigned  to  thy  will  in 


13 


every  event  of  life  and  of  death ;  and  especially  in  the  loss 
which  we  now  deplore.  The  same  we  ask  for  thy  ser 
vants  the  family  of  the  deceased,  and  for  all  allied  to  him  in 
kindred  or  in  friendship  :  beseeching  thee  that  they  may  be 
comforted  under  their  afflictions  by  the  promises  of  thy 
word,  so  as  not  to  sorrow  as  those  who  have  no  hope.  We 
pray  for  them  and  for  ourselves,  that  thy  Holy  Spirit  may 
lead  us  through  this  vale  of  misery,  in  righteousness  and 
holiness,  before  thee  all  our  days ;  so  that  when  we  shall 
have  served  thee  in  our  generation,  we  may  be  gathered  to 
our  fathers,  having  the  testimony  of  a  good  conscience,  in  the 
^communion  of  the  Catholic  Church,  in  the  confidence  of  a 
sure  faith,  in  the  comfort  of  a  reasonable,  religious  and  holy 
hope,  in  the  favour  of  thee  our  God,  and  in  charity  with  all 
mankind.  These  things  we  ask  through  the  merits  of  Jesus 
Christ,  thy  son,  our  Lord.  Amen. 

O  God,  who  hast  instructed  us  in  thy  holy  word,  to  ren 
der  honour  to  whom  it  is  due,  we  implore  thy  blessing  on 
the  celebration  which  is  to  follow.  Support,  in  the  discharge 
of  this  duty,  thy  servant  to  whom  it  is  committed.  May 
this  tribute  of  gratitude  be  worthy  of  the  name  which  it 
commemorates.  May  the  inhabitants  of  this  land,  while 
they  join  in  or  approve  of  our  present  celebration,  feel  it  a 
call  to  a  due  reverence  of  the  laws,  and  of  submission  to  the 
administration  of  them ;  and  may  all,  who  like  the  venerable 
deceased,  have  been  eminent  benefactors  to  mankind,  like 


14 

him,  also  find  grateful  fellow  citizens,  honouring  them  in 
their  lives  and  in  their  deaths,  which  we  ask  through  Jesus 
Christ  our  Lord.  Amen. 

"  Now  the  God  of  Peace,  who  brought  again  from  the 
dead  our  Lord  Jesus  Christ,  that  great  shepherd  of  the  sheep, 
through  the  blood  of  the  everlasting  covenant,  make  you 
perfect  in  every  good  work,  to  do  his  will ;  working  in  you 
that  which  is  well  pleasing  in  his  sight,  through  Jesus 
Christ  our  Lord,  to  whom  be  glory  for  ever  and  ever. 
Amen.*  HEB.  xm.  20,  21. 


•The  above  (mutatis  mutandis)  is  the  same  with  that  used  above  thirty-five  years  ago, 
on  the  occasion  of  the  commemoration  of  President  Washington,  in  presence  of  the 
then  President  and  Congress,  and  before  an  Eulogy  by  General  Henry  Lee. 


EULOGY  ON 

JOHN  MARSHALL. 


FELLOW  CITIZENS, 

The  Providence  of  God  is  shown  most  bene 
ficently  to  the  world,  in  raising  up  from  time  to  time,  and 
in  crowning  with  length  of  days,  men  of  pre-eminent  good 
ness  and  wisdom.  Many  of  the  undoubted  blessings  of  life, 
which  minister,  and  were  designed  to  minister,  to  the  eleva 
tion  of  man,  tend,  nevertheless,  by  developing  the  inferior 
qualities  of  his  mixed  nature,  to  impair  the  authority  and  to 
deaden  the  aspirations  of  his  immortal  spirit.  The  unnum 
bered  contributions  to  the  sum  of  physical  enjoyment,  which 
a  bountiful  Creator  has  spread  around  us,  afford  such  a 
prodigal  repast  to  the  senses,  that  if  man  were  not  some 
times  allured  from  the  banquet  by  the  example  of  wisdom, 
or  driven  from  it  by  the  voice  of  conscience  or  of  inspiration, 
he  would  "  decline  so  low  from  virtue"  as  to  become  inca 
pable  of  discerning  its  beauty,  or  of  rising  to  its  delights. 
If  there  was  not  something  within  or  without,  to  remind 
him  that  these  pleasures  of  sense  were  designed  to  alleviate 
the  labours  of  virtue  in  her  arduous  career,  and  not  to  seduce 
her  from  it,  it  might  raise  the  irreverent  question,  whether 
the  frame  of  man  was  adequately  devised  to  contend  with 
the  temptations  which  surround  him.  But  the  wisdom  of  the 
Creator  is  justified  in  all  his  works.  It  is  a  provision  in 


16 


the  moral  government  of  the  world,  to  hold  out  constantly  to 
mankind,  both  the  example  of  virtue  for  imitation,  and  its 
precepts  for  obedience ;  and  the  moral  constitution  of  man 
is  never  so  depraved,  as  to  be  totally  insensible  to  either. 
Sometimes  the  inducement  to  virtue  is  derived  from  the 
catastrophe  which  closes  the  career  of  vice ;  sometimes  from 
that  internal  monitor,  which  however  oppressed  by  a  load 
of  crimes,  has  always  sufficient  remains  of  life  to  breathe 
its  complaints  into  the  hearts  of  the  guilty.  To  the  sensual 
it  often  comes  in  the  pains  and  disgusts  of  satiety,  and  occa 
sionally  to  the  most  hardened  in  the  awakening  denunciations 
of  future  responsibility.  The  good  find  it  in  the  pleasures 
of  beneficence,  and  the  wise  in  the  enjoyments  of  wisdom. 
It  is  addressed  severally  to  each,  and  with  endless  variety 
corresponding  to  his  personal  case  and  condition.  But  it 
comes  to  all,  and  at  all  times,  and  with  most  persuasive 
influence,  in  the  beautiful  example  of  a  long  career  of  public 
and  private  virtue,  of  wisdom  never  surprised,  of  goodness 
never  intermitted,  of  benignity,  simplicity,  and  gentleness, 
finally  ending  in  that  hoary  head  which  "  is  a  crown  of 
glory,  if  it  be  found  in  the  way  of  righteousness."  To  this 
example  all  men  of  all  descriptions,  pay  voluntary,  or  in 
voluntary  homage.  There  is  no  one  from  whom  the  impress 
of  the  Deity  is  so  wholly  effaced,  as  to  be  insensible  to  its 
beauty.  The  very  circumstance  of  its  duration  affects 
all  hearts  with  the  conviction,  that  it  has  the  characters  of 
that  excellence  which  is  eternal,  and  it  is  thus  sanctified 
while  it  still  lives  and  is  seen  of  men.  When  death  has 
set  his  seal  upon  such  an  example,  the  universal  voice 
proclaims  it  as  one  of  the  appointed  sanctions  of  virtue, 
and  if  great  public  services  are  blended  with  it>  com 
munities  of  men  come  as  with  one  heart  to  pay  it  the  tribute 
of  their  praise,  and  to  pass  it  to  succeeding  generations,  with 
the  attestation  of  their  personal  recognition  and  regard. 


17 


It  is  such  an  example  and  such  a  motive,  my  fellow 
citizens,  that  have  led  the  Councils  of  this  city  to  commit  to 
my  hands  the  duty  of  expressing  your  admiration  and 
gratitude  for  the  illustrious  virtues,  talents,  and  services  of 
JOHN  MARSHALL.  His  last  hours  were  numbered  within 
your  city.  His  unfading  example  here  received  its  last 
finish.  You  were  the  first  to  mourn  by  the  side  of  his  ven 
erable  remains,  after  the  spirit  which  enlightened  him  had 
gone  to  its  reward;  and  you  now  claim  to  record  your 
reverence  for  a  name  which  after  first  coming  to  distinction 
in  its  native  state,  and  then  for  a  long  course  of  years  shed 
ding  lustre  upon  the  whole  country,  has  finally  ceased  to  be 
mortal  upon  this  spot. 

If  its  defective  commemoration  by  me,  could  mar  the 
beauty  of  this  example,  I  should  shrink  from  it,  as  from  a 
profanation :  but  it  is  the  consolation  of  the  humblest,  as  it 
ought  to  be  of  the  most  gifted,  of  his  eulogists,  that  the  case 
of  this  illustrious  man  is  one,  in  which  to  give  with  simpli 
city,  the  record  of  his  life,  is  to  come  nearest  to  a  resem 
blance  of  the  great  original;  and  to  attempt  to  go  beyond  it,  is 


with  taper  light 

To  seek  the  beauteous  eye  of  Heaven  to  garnish. 

JOHN  MARSHALL  was  born  at  a  place  called  Germantown, 
in  Fauquier  county,  Virginia,  on  the  24th  of  September, 
1755,  eighty  years  ago  this  day.  It  was  a  little  more  than 
two  months  after  the  memorable  defeat  of  Braddock  had 
brought  to  the  notice  of  the  British  empire  the  name  of 
George  Washington,  then  a  youth  of  twenty-three,  whose 
courage  and  conduct  in  that  disastrous  surprise,  were  after 
wards  to  be  the  grateful  theme  of  his  faithful  historian  and 
friend. 


18 


His  grandfather,  of  the  same  name,  was  a  native  of  Wales, 
who  settled  in  Westmoreland  county  about  the  year  1730, 
where  he  married  Elizabeth  Markham,  a  native  of  England. 
Of  four  sons  and  five  daughters  of  this  marriage,  Thomas, 
the  father  of  the  Chief  Justice,  was  the  oldest,  and  inherited 
the  family  estate  called  "  Forest,"  consisting  of  a  few  hun 
dred  acres  of  poor  land  in  Westmoreland.  He  removed 
from  this  county  to  Fauquier  soon  after  he  attained  manhood, 
and  having  intermarried  with  Mary  Keith,  by  which  he  be 
came  connected  with  the  Randolphs,  he  sat  down  upon  a 
small  farm  at  the  place  where  John  Marshall,  his  oldest  son, 
was  afterwards  born.  The  great  proprietor  of  the  Northern 
Neck  of  Virginia,  including  Fauquier,  was  at  that  time  Lord 
Fairfax,  who  gave  to  George  Washington  the  appointment 
of  Surveyor  in  the  western  part  of  his  territory,  and  Wash 
ington  employed  Thomas  Marshall  in  the  same  business. 
They  had  been  near  neighbours  from  birth,  associates  from 
boyhood,  and  were  always  friends. 

Thomas  Marshall  was  a  man  of  extraordinary  vigour  of 
mind,  and  of  undaunted  courage.  When  his  associate  and 
friend  received  the  command  of  the  American  armies  in  the 
war  of  the  Revolution,  he  left  his  estate  and  his  large  fami 
ly,  then  or  soon  after  comprising  fifteen  children,  and  em 
barked  in  the  same  cause.  Filial  respect  and  affection, 
have  recorded  of  him,  that  he  commanded  the  third  Virginia 
Regiment  upon  the  continental  establishment,  and  performed 
with  it  the  severe  duty  of  the  campaign  of  1776.  On  the 
26th  of  December  in  that  year,  he  shared  the  peril  as  well 
as  the  glory  of  that  enterprise,  not  surpassed  in  vigour  or 
brilliancy  by  any  thing  in  the  Revolution,  in  which  the  Hes 
sian  regiments  at  Trenton  were  surprised  and  captured,  by 
troops  who  had  passed  the  previous  night  in  contending 
with  the  snow  and  hail  and  the  driving  ice  of  the  Delaware. 


19 


He  was  afterwards,  on  the  llth  September,  1777,  placed 
with  his  regiment  on  the  right  of  the  American  army  at 
Brandywine,  and  received  the  assault  of  the  column  led  by 
Lord  Cornwallis.  "Though  attacked  by  much  superior 
numbers,  the  regiment  maintained  its  position  without  losing 
an  inch  of  ground,  until  both  its  flanks  were  turned,  its 
ammunition  nearly  expended,  and  more  than  one  half  of  the 
officers  and  one  third  of  the  soldiers  were  killed  or  wounded. 
Colonel  Marshall,  whose  horse  had  received  two  balls,  then 
retired  in  good  order  to  resume  his  position  on  the  right  of 
his  division,  but  it  had  already  retreated."*  We  may  be 
lieve  that  from  such  a  father,  the  son  would  derive  the  best 
preparation  for  a  career  that  was  to  exemplify  the  virtues  of 
fortitude,  patriotism,  and  invincible  constancy  in  the  main 
tenance  of  what  he  deemed  to  be  right. 

After  residing  a  few  years  at  Germantown,  the  father  re 
moved  with  his  family  about  thirty  miles  farther  west,  and 
settled  in  the  midst  of  the  mountains  east  of  the  Blue  Ridge, 
at  a  place  called  "  The  Hollow,"  in  a  country  thinly  peo 
pled  and  destitute  of  schools,  but  remarkable  for  the  salubrity 
of  its  atmosphere,  and  the  picturesque  beauty  of  its  moun 
tain  scenery.  It  was  a  place  altogether  admirable  for  the 
formation  of  a  physical  constitution,  and  for  the  develop 
ment  of  its  powers  by  athletic  exercises  and  sports  :  and  it 
was  here  that  the  son  remained  until  his  fourteenth  year, 
laying  the  foundation  of  that  vigorous  health  which  attended 
him  through  life,  and  deriving  from  his  father  all  the  training 
in  letters,  which  a  then  frontier  county  of  Virginia,  or  the 
moderate  resources  of  a  farmer,  could  afford.  At  the  age  of 
fourteen  he  was  sent  for  instruction  in  Latin  to  a  Clergyman 
named  Campbell,  who  resided  in  Westmoreland,  with  whom 

*  1  Marshall's  Washington,  158. 


20 


he  remained  about  a  year,  having  for  one  of  his  fellow 
students  James  Monroe,  afterwards  President  of  the  United 
States;  he  then  returned  to  his  father,  who  about  that  time 
removed  to  the  place  called  Oak  Hill,  which  still  remains  in 
the  family.  He  here  received  for  the  term  of  another  year, 
some  further  instruction  in  Latin  from  a  Scotch  gentleman 
named  Thomson,  who  was  the  clergyman  of  the  parish  and 
lived  in  his  father's  family;  and  this  was  the  whole  of  the 
classical  tuition  he  ever  obtained.  But  his  father,  though  he 
had  not  himself  enjoyed  the  benefit  of  an  early  education, 
was  devoted  to  the  cultivation  of  his  children,  and  sought  by 
personal  instruction  to  supply  to  them  what  he  had  not  the 
means  of  deriving  from  seminaries  of  learning.  He  was  a 
practical  surveyor,  adequately  acquainted  with  the  Mathe 
matics  and  Astronomy,  and  familiarly  conversant  with  His 
tory,  Poetry,  and  general  literature,  of  which  he  possessed 
most  of  the  standard  works  in  our  language;  and  these  were 
the  means,  which,  under  his  fostering  attention,  seconded  by 
extraordinary  facility  in  his  pupil,  and  by  a  sweetness  of 
temper  which  was  his  characteristic  from  birth,  completed 
all  the  education  the  son  received.  It  is  the  praise  and  the 
evidence  of  the  native  powers  of  his  mind,  that  by  domestic 
instruction,  and  two  years  of  grammatical  and  classical  tuition 
obtained  from  other  sources,  Mr.  Marshall  wrought  out  in 
after  life  a  comprehensive  mass  of  learning  both  useful  and 
elegant,  which  accomplished  him  for  every  station  that  he 
filled,  and  he  filled  the  highest  of  more  than  one  description. 

The  war  of  the  revolution  is  known  to  have  been  in  pre 
paration  for  some  years  before  the  first  blow  was  struck. 
In  all  the  colonies,  the  topics  of  controversy  were  familiar 
to  the  youth,  and  in  none  more  than  in  Virginia.  The 
most  temperate  spirits  in  the  land  looked  to  arms  as  the  in 
evitable  recourse ;  and  by  their  writings,  their  speeches, 


21 


their  daily  and  familiar  conversation,  spread  the  preparatory 
temper  around  them.  It  was  the  retired  soldier  of  Mount 
Vernon,  who  in  April  1769,  thus  wrote  to  his  friend  George 
Mason,  who  afterwards  drafted  the  first  constitution  of  Vir 
ginia  :  "At  a  time  when  our  lordly  masters  in  Great  Britain 
will  be  satisfied  with  nothing  less  than  a  deprivation  of 
American  freedom,  it  seems  highly  necessary  that  something 
should  be  done  to  avert  the  stroke,  and  maintain  the  liberty 
which  we  have  derived  from  our  ^ancestors.  But  the  man 
ner  of  doing  it,  to  answer  the  purpose  effectually ,  is  the 
point  in  question.  That  no  man  should  scruple  or  hesitate 
a  moment  to  use  arms  in  defence  of  so  valuable  a  blessing, 
is  clearly  my  opinion." 

This  sentiment  and  others  of  the  like  strain,  universally 
diffused,  led  to  military  training  in  many  parts  of  the  coun 
try.  It  was  to  furnish  the  only  effectual  answer  to  the  pur 
pose  of  oppression ;  and  as  the  heart  of  John  Marshall  was 
from  his  birth  riveted  to  the  cause  of  freedom,  he  devoted 
himself  from  1773,  when  he  was  in  his  eighteenth 
year,  to  acquire  the  elements  of  military  knowledge  in  a 
volunteer  corps,  with  a  comparative  disregard  of  the  further 
pursuit  of  his  civil  education,  and  of  the  study  of  the  law, 
which  he  had  commenced. 

The  battle  of  Lexington,  on  the  19th  of  April,  1775, 
brought  to  a  crisis  the  protracted  efforts  of  the  colonies,  to 
obtain  the  blessings  of  political  liberty  by  appeals  to  justice, 
and  to  the  principles  of  the  British  constitution. 

At  this  date,  Mr.  Marshall  resided  in  the  paternal  mansion 
at  Oak  Hill,  and  his  first  appearance  after  intelligence  of  the 
event,  was  as  an  officer  of  a  militia  company  in  Fauquier, 
which  had  been  ordered  to  assemble  about  ten  miles  from  his 


22 


residence.     A  kinsman  and  cotemporary,  who  was  an  eye 
witness  of  this  scene,  has  thus  described  it  to  me. 

"  It  was  in  May,  1775.  He  was  then  a  youth  of  nine 
teen.  The  muster  field  was  some  twenty  miles  distant  from 
the  Court  House,  and  in  a  section  of  country  peopled  by  til 
lers  of  the  earth.  Rumours  of  the  occurrences  near  Boston, 
had  circulated  with  the  effect  of  alarm  and  agitation,  but 
without  the  means  of  ascertaining  the  truth,  for  not  a  news 
paper  was  printed  nearer  than  Williamsburg,  nor  was  one 
taken  within  the  bounds  of  the  militia  company,  though 
large.  The  Captain  had  called  the  company  together,  and 
was  expected  to  attend,  but  did  not.  John  Marshall  had 
been  appointed  Lieutenant  to  it.  His  father  had  formerly 
commanded  it.  Soon  after  Lieutenant  Marshall's  appear 
ance  on  the  ground,  those  who  knew  him  clustered  about 
him  to  greet  him,  others  from  curiosity  and  to  hear  the  news. 

"  He  proceeded  to  inform  the  company  that  the  Captain 
would  not  be  there,  and  that  he  had  been  appointed  Lieuten 
ant  instead  of  a  better : — that  he  had  come  to  meet  them  as 
fellow  soldiers,  who  were  likely  to  be  called  on  to  defend 
their  country,  and  their  own  rights  and  liberties  invaded  by 
the  British : — that  there  had  been  a  battle  at  Lexington  in 
Massachusetts,  between  the  British  and  Americans,  in  which 
the  Americans  were  victorious,  but  that  more  fighting  was 
expected: — that  soldiers  were  called  for,  and  that  it  was 
time  to  brighten  their  fire  arms,  and  learn  to  use  them  in  the 
field ; — and  that  if  they  would  fall  into  a  single  line,  he  would 
show  them  the  new  manual  exercise,  for  which  purpose 
he  had  brought  his  gun, — bringing  it  up  to  his  shoulder. — 
The  sergeants  put  the  men  in  line,  and  their  fugleman  pre 
sented  himself  in  front  to  the  right.  His  figure,  says  his 
venerable  kinsman,  I  have  now  before  me.  He  was  about 
six  feet  high,  straight  and  rather  slender,  of  dark  com- 


23 


plexion — showing  little  if  any  rosy  red,  yet  good  health, 
the  outline  of  the  face  nearly  a  circle,  and  within  that,  eyes 
dark  to  blackness,  strong  and  penetrating,  beaming  with  in 
telligence  and  good  nature ;  an  upright  forehead,  rather  low, 
was  terminated  in  a  horizontal  line  by  a  mass  of  raven-black 
hair  of  unusual  thickness  and  strength — the  features  of  the 
face  were  in  harmony  with  this  outline,  and  the  temples 
fully  developed. — The  result  of  this  combination  was  inte 
resting  and  very  agreeable.  The  body  and  limbs  indicated 
agility,  rather  than  strength,  in  which,  however,  he  was  by 
no  means  deficient.  He  wore  a  purple  or  pale-blue  hunting- 
shirt,  and  trousers  of  the  same  material  fringed  with  white. 
A  round  black  hat,  mounted  with  the  bucks-tail  for  a  cock 
ade,  crowned  the  figure  and  the  man. 

"  He  went  through  the  manual  exercise  by  word  and  mo 
tion  deliberately  pronounced  and  performed,  in  the  presence 
of  the  company,  before  he  required  the  men  to  imitate  him  ; 
and  then  proceeded  to  exercise  them,  with  the  most  perfect 
temper.  Never  did  man  possess  a  temper  more  happy,  or 
if  otherwise,  more  subdued  or  better  disciplined. 

"After  a  few  lessons,  the  company  were  dismissed,  and 
informed  that  if  they  wished  to  hear  more  about  the  war, 
and  would  form  a  circle  around  him,  he  would  tell  them 
what  he  understood  about  it.  The  circle  was  formed,  and  he 
addressed  the  company  for  something  like  an  hour.  I  re 
member,  for  I  was  near  him,  that  he  spoke  at  the  close  of 
his  speech  of  the  Minute  Battalion,  about  to  be  raised,  and 
said  he  was  going  into  it,  and  expected  to  be  joined  by  many 
of  his  hearers.  He  then  challenged  an  acquaintance  to  a 
game  of  quoits,  and  they  closed  the  day  with  foot  races,  and 
other  athletic  exercises,  at  which  there  was  no  betting.  He 
had  walked  ten  miles  to  the  muster  field,  and  returned  the 


24 


same  distance  on  foot  to  his  father's  house  at  Oak  Hill, 
where  he  arrived  a  little  after  sunset." 

This  is  a  portrait,  my  fellow  citizens,  to  which  in  sim 
plicity,  gaiety  of  heart,  and  manliness  of  spirit,  in  every 
thing  but  the  symbols  of  the  youthful  soldier,  and  one  or 
two  of  those  lineaments,  which  the  hand  of  time,  however 
gentle,  changes  and  perhaps  improves,  he  never  lost  his 
resemblance.  All  who  knew  him  well,  will  recognize  its 
truth  to  nature. 

In  the  summer  of  1775,  he  was  appointed  first  Lieutenant 
of  a  company  in  that  Minute  Battalion,  of  which  he  had 
spoken, — was  ordered  in  the  autumn  of  that  year  to  the 
defence  of  the  inhabitants  adjacent  to  Norfolk,  then  menaced 
by  a  predatory  force  under  Lord  Dunmore,  the  Royal  Gov 
ernor  of  the  colony ;  and  on  the  9th  of  December  he  had  a 
part  in  the  gallant  and  successful  action  at  the  Great  Bridge, 
where  Lord  Dunmore  attempted  to  arrest  their  further  pro 
gress  to  Norfolk,  but  was  compelled  by  defeat  to  take 
refuge  in  his  vessels,  and  to  leave  to  the  inhabitants  the 
succour  which  had  been  sent  them.  Thus,  at  an  age  when 
the  law  regarded  him  as  still  in  a  state  of  pupilage  to  be 
defended  by  others,  he  was  facing  the  fire  of  the  enemy  in 
the  defence  of  his  country. 

In  July,  1776,  he  was  commissioned  a  Lieutenant  in  the 
llth  Virginia  Regiment  in  the  continental  service,  with 
which  he  marched  to  the  northward,  where  in  May,  1777, 
he  was  appointed  a  Captain;  and  from  this  time  till  Febru 
ary,  1781,  with  the  exception  of  a  part  of  the  year  1779-80, 
he  was  constantly  at  the  post  of  danger,  and  had  before  the 
age  of  twenty-six,  given  one  third  of  his  life  either  to  pre- 


25 


paration  for  duty,  or  to  the  full  and  effective  services  of  a 
patriot  soldier. 

The  principal  events  of  his  military  life,  have  a  peculiar 
interest  for  you,  my  fellow  citizens,  since  the  protection  or 
the  rescue  of  this  city  from  the  grasp  of  the  enemy,  was 
connected  with  most  of  them.  His  regiment  belonged  to  the 
brigade  of  General  Woodford,  which  formed  part  of  the 
American  right  at  the  battle  of  Brandywine,  in  front  of 
which  was  placed  the  third  regiment,  commanded  by  his 
gallant  father. 

On  the  fourth  of  October  following,  he  was  in  the  battle 
of  Germantown,  and  in  that  part  of  the  American  army, 
which  after  attacking  the  light  infantry  posted  in  front  of  the 
British  right  wing,  and  driving  it  from  its  ground,  was  de 
tained,  while  pursuing  the  flying  enemy,  by  the  fire  of  the 
40th  British  regiment  in  Chew's  house. 

He  was  one  of  that  body  of  men,  never  surpassed  in  the 
history  of  the  world,  who,  unpaid,  unclothed,  unfed,  tracked 
the  snows  of  Valley  Forge  with  the  blood  of  their  footsteps 
in  the  rigorous  winter  of  1778,  and  yet  turned  not  their 
faces  from  their  country  in  resentment,  nor  from  their  ene 
mies  in  fear. 

He  was  again  in  battle  at  Monmouth  on  the  28th  June, 
1778,  upon  the  retreat  of  the  British  army  from  this  city  to 
New  York;  and  thus  in  the  course  of  less  than  a  year,  he 
was  three  times  in  battle  under  the  immortal  father  of  his 
country,  and  twice,  in  the  fields  of  Brandywine  and  Mon 
mouth,  with  the  heroic  La  Fayette.  Washington — La 
Fayette — Marshall—' what  names  now  more  sacred  to  the 
lovers  of  constitutional  freedom  throughout  this  land !  Bran- 


26 


dywinc — Germantown — Monmouth — What  battles  could 
have  equalled  the  disaster  of  these,  if  their  rolls  had  returned 
such  names  among  the  dead  ! 

On  the  night  of  the  15th  June,  1779,  he  was  in  the  cov 
ering  party  at  the  assault  of  Stony  Point ;  and  was  subse 
quently  an  officer  of  the  detachment  ordered  by  Lord 
Sterling  to  cover  the  retreat  of  Major  Lee,  after  his  brilliant 
surprise,  and  capture  of  the  British  garrison  at  Powles' 
Hook,  on  the  night  of  the  18th  August.  He  continued  on 
the  Hudson  until  the  close  of  that  year,  when  not  being  in  that 
part  of  the  Virginia  line  which  was  ordered  to  South  Caro 
lina,  and  the  enlistment  of  the  rest  of  the  Virginia  troops 
having  expired,  he  returned  to  his  native  state,  and  until 
October,  1780,  prosecuted  the  study,  and  took  a  license  for 
the  practice  of  the  law. 

In  October,  1780,  when  the  man  who  was  the  only  stain 
upon  the  fidelity  of  the  American  army,  invaded  the  state  of 
Virginia  with  a  British  force,  Captain  Marshall  again  joined 
the  army  under  the  command  of  Baron  Steuben,  and  on  the 
10th  of  January,  1781,  was  with  it  near  Hoods,  when  the 
British  troops,  on  their  retiring  to  Portsmouth,  sustained,  in 
an  ambuscade  by  the  Americans,  the  only  loss  which  on 
their  part  attended  that  incursion.  Before  the  renewed  in 
vasion  of  Virginia  in  the  spring  of  1781,  ther^  being  more 
officers  than  the  state  of  the  Virginia  line  required,  he  re 
signed  his  commission,  and  in  the  succeeding  autumn  com 
menced  the  business  of  his  profession. 

And  now,  my  fellow  citizens,  if  in  the  heat  and  conflict 
of  political  parties,  it  sometimes  happens,  as  happen  it  does, 
that  the  principles  and  motives  of  the  best  among  us,  are 
calumniated  by  imputed  disaffection  to  freedom,  to  republi- 


27 


canism,  and  to  the  good  of  the  people,  what  more  triumphant 
refutation  of  the  slander,  if  it  were  uttered  against  John 
Marshall,  than  to  hold  up  this  brief  sketch  of  the  first  twenty- 
five  years  of  his  life !  A  man  of  the  people,  deriving  his 
existence  from  a  cultivator  of  the  earth :  a  stranger  during 
youth  to  all  the  indulgences  which  nourish  a  sense  of  supe 
riority  to  others,  or  deaden  a  sympathy  with  the  humble: — 
imbibing  his  knowledge,  his  tastes,  his  morality,  his  esti 
mate  of  mankind,  from  a  brave  and  virtuous  yeoman  : — and 
at  the  age  of  nineteen,  seizing  a  sword  from  the  armory  of 
his  country,  and  without  the  thirst  of  military  glory  or  the 
love  of  command,  carrying  it  for  six  years  unsheathed,  in 
the  cause  of  equal  rights ! — Such  a  man  at  the  age  of  twenty- 
five,  must  have  turned  out  his  father's  blood  from  his  veins, 
and  have  dug  up  from  the  native  soil  of  his  heart,  every  seed 
and  plant  of  his  youth,  or  he  could  have  no  choice  but  to 

live  and  to  die  a  republican. 

f 

But  a  short  time  elapsed  after  Mr.  Marshall's  appearance 
at  the  bar  of  Virginia,  before  he  attracted  the  notice  of  the 
public.  His  placidity,  moderation,  and  calmness,  irresistibly 
won  the  esteem  of  men,  and  invited  them  to  intercourse 
with  him; — his  benevolent  heart,  and  his  serene  and  at 
times  joyous  temper,  made  him  the  cherished  companion  of 
his  friends ; — his  candour  and  integrity  attracted  the  confi 
dence  of  the  bar ; — and  that  extraordinary  comprehension 
and  grasp  of  mind,  by  which  difficulties  were  seized  and 
overcome  without  effort  or  parade,  commanded  the  attention 
and  respect  of  the  Courts  of  Justice.  This  is  the  tradition 
ary  account  of  the  first  professional  years  of  John  Marshall. 
He  accordingly  rose  rapidly  to  distinction,  and  to  a  dis 
tinction  which  nobody  envied,  because  he  seemed  neither  to 
wish  it,  nor  to  be  conscious  of  it  himself. 


28 


He  was  chosen  a  representative  to  the  Legislature,  and 
then  a  member  of  the  Executive  Council,  in  the  course  of 
the  year  1782 ;  but  after  his  marriage  in  January.  1783, 
with  Mary  Willis  Ambler,  a  daughter  of  Jacqueline  Ambler,  of 
York,  in  Virginia,  he  was  desirous  of  leaving  public  life,  that 
he  might  devote  himself  more  closely  to  his  profession,  and  to 
that  domestic  felicity  which  was  promised  by  his  union  with 
a  lady  who  for  nearly  fifty  years  enjoyed  his  unceasing 
affection  and  tenderness,  and  whom  he  describes  in  his  will 
as  a  Sainted  Spirit  that  had  fled  from  the  sufferings  of  life. 
He  accordingly,  in  the  year  1784,  resigned  his  seat  in  the 
Executive  Council;  but  although  he  was  an  inhabitant  of 
Richmond,  his  friends  in  Fauquier,  who  had  known  and 
loved  him  from  his  birth,  and  took  a  most  natural  pride  in 
connecting  his  rising  name  with  their  county,  spontaneously 
elected  him  to  the  Legislature ;  and  in  the  year  1787,  he 
was  chosen  a  representative  to  the  same  body  for  the  city  of 
Richmond. 

A  day  had  now  approached,  when  questions  of  momen 
tous  national  concern  were  to  display  more  extensively  the 
powers  of  this  eminent  man,  and  to  give  to  the  whole 
American  people  an  interest  in  his  services  and  fame. 

Whoever  speaks  of  the  confederation  under  which  these 
states  achieved  their  separation  from  Great  Britain,  may 
safely  do  it  in  the  language,  and  with  the  feelings  of  the 
Historian  of  Washington.  "Like  many  other  human  insti 
tutions,"  he  says,  "it  was  productive  neither  in  war  nor  in 
peace,  of  all  the  benefits  which  its  sanguine  advocates  had 
expected.  Had  peace  been  made  before  any  agreement  for 
a  permanent  union  was  formed,  it  is  far  from  being  improba 
ble,  that  the  different  parts  might  have  fallen  asunder,  and  a 
dismemberment  have  taken  place.  If  the  confederation 


29 


really  preserved  the  idea  of  union,  until  the  good  sense  of 
the  nation  adopted  a  more  efficient  system,  this  service 
alone  entitles  that  instrument  to  the  respectful  recollection  of 
the  American  people,  and  its  framers  to  their  gratitude."* 
With  this  just  testimonial  to  a  merit  sufficient  of  itself  to 
consecrate  it  in  the  affections  of  the  country,  it  must  at  the 
same  time  be  conceded,  that  the  confederation  was  no  more 
than  the  limited  representative  of  other  governments,  and 
not  a  government  itself.  It  was  a  league  of  Sovereigns, 
but  not  a  Sovereign,  nor  had  its  mandates  the  sanctions,  nor 
consequently  the  efficacy,  of  a  supreme  law.  With  power 
to  contract  debts,  and  to  pledge  the  public  faith  for  their  pay 
ment,  it  had  no  power  to  levy  taxes,  or  to  impose  duties  for 
the  redemption  of  the  pledge.  It  was  competent  to  declare 
war,  but  not  to  raise  armies  to  carry  it  on.  It  was  authorized 
to  receive  Ambassadors  and  to  make  treaties,  but  not  to  re 
gulate  commerce,  their  most  frequent  and  most  salutary 
object.  It  stipulated  for  the  free  and  equal  trade  and  inter 
course  of  the  citizens  of  all  the  states,  but  was  without 
judicial  authority  to  decide  upon  the  violation  of  the  com 
pact,  or  to  declare  the  nullity  of  the  violating  law.  It  was 
in  fine  the  organ  of  communication  between  the  states,  and 
with  foreign  powers,  and  was  entrusted  in  certain  cases  to 
declare  their  respective  relations,  and  to  assess  the  propor 
tions  in  which  the  members  of  the  confederacy  were  to 
discharge  their  common  duty,  but  it  could  effectuate  nothing, 
until  the  separate  consent  and  act  of  the  states  had  supplied 
it  with  the  means.  Every  case  of  non-compliance  with  the 
requisitions  of  Congress,  and  they  were  frequent  and  fearful, 
was  consequently  either  a  case  of  rupture  and  dissolution  of 
the  union,  or  of  general  paralysis.  When  the  excitement 
of  war  had  subsided,  and  a  diversity  of  local  interests  had 

*  1  Marsh.  Life  of  Washington,  429. 


30 


produced  the  inevitable  birth  of  opposing  wishes  and  opin 
ions,  "  a  government  depending  upon  thirteen  distinct  sove 
reignties  for  the  preservation  of  the  public  faith,  could  not 
be  rescued  from  ignominy  and  contempt,  but  by  finding 
those  sovereignties  administered  by  men  exempt  from  the 
passions  incident  to  human  nature."* 

The  years  of  peace  which  immediately  ensued  this  glori 
ous  war,  attested  but  too  faithfully  the  entire  inefficiency  of 
this  system  for  the  maintenance  of  the  character  as  well  as 
of  the  interests  of  the  American  people.  The  debts  of  the 
nation  were  unpaid,  even  to  "that  illustrious  and  patriotic 
band  of  fellow  citizens,  whose  blood  and  whose  bravery  had 
defended  the  liberties  of  their  country."!  The  men  whom 
we  now  seek  for  in  every  nook  and  corner  of  this  extended 
land,  to  clothe  them  with  the  mantle  of  unsparing  bounty, 
in  gratitude  for  the  smallest  contribution  of  military  service, 
are  the  survivors  of  those,  who,  having  borne  the  burden  of 
the  whole  war,  were  then  suffered  to  perish  in  their  rags  for 
want  of  justice.  Some  of  the  stipulations  of  the  treaty  of 
peace  with  Great  Britain,  were  confessedly  violated  by  us, 
through  the  inability  of  Congress  to  enforce  their  perform 
ance  by  the  states;  and  the  nation  from  whom  we  had 
wrung  our  freedom,  in  a  struggle  not  more  illustrated  by 
courage,  than  by  that  virtue  which  justified  the  appeal  "  to 
the  Supreme  Judge  of  the  world  for  the  rectitude  of  our 
intentions,"  could  cite  our  defaults  in  peace,  as  the  cause 
and  excuse  of  her  own.  Public  credit  was  annihilated: — 
Private  engagements  were  disregarded: — State  laws,  instead 
of  correcting  the  evil,  in  many  instances  increased  it,  by 
relaxing  the  administration  of  Justice ;  and  the  fruit  of  the 


*  2  Marsh.  Life  of  Washington,  75. 
t  Address  of  Congress  to  the  States. 


31 


whole  was  the  prodigious  birth  of  parties,  in  whose  conflict 
the  common  mother  that  bore  them  was  threatened  with 
dishonour  and  death. 

These  parties,  in  both  of  which  there  were  many  who 
looked  with  agony  upon  the  state  of  the  country,  and  at  the 
crisis,  which  the  unremedied  mischiefs  of  the  time  must 
soon  have  brought  on,  were  in  all  that  regards  our  national 
union,  discriminated  by  a  broad  and  never  to  be  forgotten 
distinction.  On  the  one  side,  regarding  the  people  as  one, 
by  their  common  sufferings,  triumphs  and  interests,  and 
dreading  the  catastrophe  which  they  feared  was  at  hand, 
they  laboured  to  unite  them  in  an  indissoluble  union,  under 
one  Federal  head,  having  supreme  power  to  regulate  and 
govern  the  general  concerns  of  the  whole.  On  the  other, 
regarding  the  states  with  partial  affection,  and  jealous  of 
every  measure  which  tended  to  deprive  them  of  any  portion 
of  the  ultimate  control,  they  magnified  the  danger,  and 
decried  the  uses,  and  resisted  the  grant,  of  efficient  powers, 
even  to  the  confederation. 

It  is  known  on  \vhich  side  of  this  great  question  was 
the  immortal  father  of  his  country.  "I  do  not  conceive," 
he  said  in  the  year  1786,  "  that  we  can  exist  long  as  a 
nation,  without  lodging  somewhere  a  power  which  will 
pervade  the  whole  union  in  as  energetic  a  manner,  as  the 
authority  of  the  state  governments  extends  over  the  several 
states."  Being  called  upon  to  use  his  personal  influence,  to 
bring  to  order  a  body  of  insurgents,  whom  the  disordered 
state  of  the  times  permitted  to  grow  into  flagrant  rebellion 
against  the  laws,  he  replied,  "  I  know  not  where  that  influ 
ence  is  to  be  found,  nor,  if  attainable,  that  it  would  be  a 
proper  remedy  for  these  disorders.  Influence  is  not  Gov 
ernment.  Let  us  have  a  government  by  which  our  lives, 


32 


liberties  and  properties,  will  be  secured,  or  let  us  know  the 
worst  at  once."  On  the  same  side,  then  and  ever  after,  was 
JOHN  MARSHALL  ;  and  when  the  extremity  of  public  distress 
had  wrung  from  twelve  of  the  states  their  consent  to  a  con 
vention  for  the  revision  of  the  Federal  System,  and  that 
body  had  submitted  for  the  approbation  of  the  people  of  the 
several  states  the  present  Constitution,  he  was  a  delegate  to 
the  convention  of  Virginia,  which  met  on  the  second  of 
June,  1788,  to  take  it  into  consideration. 

Virginia  was  divided  with  remarkable  equality  in  regard 
to  this  instrument,  for  which  there  is  now  among  us  a  pro 
fession  of  universal  admiration ;  and  she  sent  the  flower  of 
her  people  to  the  convention  at  which  it  was  to  be  consider 
ed.  Intelligence,  talents,  patriotism,  and  undoubted  integrity 
of  purpose,  did  not  distinguish  the  parties  in  that  body  from 
each  other ;  but  they  were  irreconcileably  opposed  in  opin 
ion,  and  respectively  assailed  and  defended  the  fundamental 
principles  of  the  constitution  with  the  ardour  of  equal  con 
viction.  The  fire  of  PATRICK  HENRY  kindled  in  many  of 
his  hearers  the  most  vivid  apprehensions  for  the  fate  of  the 
states,  and  of  freedom  itself,  under  the  influence  of  a  consti 
tution,  in  the  first  words  of  which,  "  We  the  people,"  he 
saw  the  portent  of  consolidation,  and  in  the  title  and  office 
of  President,  "  the  likeness  of  a  kingly  crown."  He 
alarmed  them  by  the  declaration,  that  by  the  power  of  taxa 
tion,  by  that  of  raising  an  army,  and  by  their  control  over 
the  militia,  Congress  would  have  the  sword  in  one  hand  and 
the  purse  in  the  other,  "and  that  unless  a  miracle  in  human 
affairs  interposed,"  the  nation  could  not  retain  its  liberty : 
that  the  treaty  making  power  would  place  the  territory  and 
commerce  of  the  states  in  the  hands  of  the  President  and 
two  thirds  of  a  quorum  of  the  Senate ;  and  that  by  its  power 
to  make  all  laws  which  should  be  necessary  and  proper  to 


carry  its  express  powers  into  effect,  "  the  government  would 
operate  like  an  ambuscade,  and  would  destroy  the  state 
governments,  and  swallow  the  liberties  of  the  people,  with 
out  giving  them  previous  notice."  Other  delegates  of  great 
name  and  influence,  the  Masons  and  the  Graysons,  men  at 
that  time  and  afterwards  most  dear  to  Virginia,  assisted  to 
rivet  these  fears  upon  the  public  mind,  by  every  variety  of 
argument  drawn  from  almost  every  provision  in  the  Consti 
tution,  those  especially  to  which  there  must  be  immediate 
resort,  in  the  very  first  steps  of  its  administration. 

Of  the  delegates  who  resisted  these  assaults,  there  were 
two  whom  subsequent  events  have  distinguished  from  the 
rest  by  their  long  continued  and  elevated  career.  JAMES 
MADISON,  who  had  been  a  distinguished  member  of  the 
convention  which  formed  the  constitution,  and  had  after 
wards  devoted  his  consummate  powers  with  HAMILTON  and 
JAY,  to  the  explanation  and  defence  of  the  whole  instrument, 
— this  now  most  venerable  and  venerated  man,  the  beautiful 
evening  of  whose  illustrious  life,  is,  to  the  delight  of  a  grate 
ful  people,  still  unspent, — gave  to  it  again  the  full  vigor  of 
his  philosophical  mind,  and  the  copious  resources  of  his 
mature  and  disciplined  wisdom ;  and  by  his  side  stood  the 
man  we  are  assembled  to  honour,  who  turning  from 
what  was  incidental  or  subordinate  to  the  more  important 
topics  of  debate,  and  shedding  upon  them  the  light  of  an 
intellect,  in  whose  rays  nothing  was  obscure,  dispelled  the 
shadows  which  had  been  thrown  around  them,  and  in  sus 
taining  the  Constitution,  unconsciously  prepared  for  his  own 
glory,  the  imperishable  connection  which  his  name  now  has 
with  its  principles.  Fortunately  for  him,  as  for  us  all,  the 
convention  of  Virginia  adopted  the  Constitution;  but  the 
small  majority  of  ten  by  which  it  was  carried,  and  this  brief 
notice  of  the  objections  to  it,  may  show  that  the  seeds  of 


34 


party  division  were  sown,  before  the  formation  of  the  pre 
sent  union,  and  that  if  the  spirit  of  the  confederation  was 
not  likely  to  misinterpret  the  administration  of  the  Constitu 
tion,  it  was  as  little  likely  to  regard  it  with  favour. 

The  sentiments  of  Mr.  Marshall  upon  the  best  general 
structure  of  government,  declared  in  this  memorable  conven 
tion,  were  those  in  which  he  afterwards  lived  and  died.  He 
was  the  friend  of  a  government  of  sufficient  strength  to 
protect  those  rights  in  whose  behalf  government  is  instituted ; 
but  he  was  also,  and  therefore,  the  friend  of  the  people, 
and  of  the  principle  of  representation,  by  which  rulers  are 
kept  in  harmony  with  the  people ;  and  he  gave  his  cordial 
preference  to  the  scheme  of  regulated  liberty,  proposed  in 
the  Constitution,  over  every  other  form  of  government  upon 
earth.  In  his  first  reply  to  Mr.  Henry,  he  said,  "  I  con- 
"  ceive  that  the  object  of  the  discussion  now  before  us  is 
"  whether  democracy  or  despotism  be  most  eligible.  Those 
"  who  framed  the  system  submitted  to  our  investigation,  and 
"  those  who  now  support  it,  intend  the  establishment  and 
"  security  of  the  former.  The  supporters  of  the  Constitution 
"  claim  tlie  title  of  being  firm  friends  of  liberty  and  the 
"  rights  of  mankind.  They  consider  it  the  best  means  of 
**  protecting  liberty.  We,  sir,  idolize  democracy.  Those 
"  who  oppose  it,  have  bestowed  eulogiums  on  monarchy. 
"  We  prefer  this  system  to  any  monarchy,  because  we  are 
"  convinced  that  it  has  a  greater  tendency  to  secure  our 
"  liberty,  and  promote  our  happiness.  We  admire  it,  be- 
" cause  we  think  it  a  well  regulated  democracy."  "The 
"  honourable  gentleman  said,  that  a  government  should  de- 
"  pend  upon  the  affections  of  the  people.  It  must  be  so.  It 
•'is  the  best  support  it  can  have."  "We  are  threatened 
*'  with  the  loss  of  our  liberties  by  the  possible  abuse  of 
"  power,  notwithstanding  the  maxim  that  t?iose  who  give 


"  may  take  away.  It  is  the  people  that  give  power  and  can 
"take  it  back.  What  shall  restrain  them ?  They  are  the 
"  masters  who  gave  it,  and  of  whom  their  servants  hold  it." 
"  The  worthy  member  has  concluded  his  observations  by 
"  many  eulogiums  on  the  British  Constitution.  It  matters 
«« not  to  us,  whether  it  be  a  wise  one  or  not.  I  think  that, 
"for  America  at  least,  the  government  on  your  table,  is 
"  very  much  superior  to  it.  I  ask  you,  if  your  house  of 
"  representatives  would  be  better  than  this,  if  the  hundredth 
"part  of  the  people  were  to  elect  a  majority  of  them?  If 
"  your  Senators  were  for  life,  would  they  be  more  agreeable 
"  to  you  ?  If  your  President  were  not  accountable  to  you  for 
"  his  conduct, — if  it  were  a  constitutional  maxim  that  he 
"  could  do  no  wrong, — would  you  be  safer  than  you  are  now  ? 
"If  you  can  answer  yes  to  these  questions,  then  adopt  the 
"  British  constitution.  If  not,  then,  good  as  that  government 
"  may  be,  this  is  better." 

It  was  the  admirable  temper  in  which  these  remarks  were 
made,  and  the  spirit  of  sincerity  and  personal  conviction 
which  breathed  in  them,  that  drew  from  Patrick  Henry,  his 
short  but  comprehensive  eulogium.  "I  have  the  highest 
respect  and  veneration  for  the  honourable  gentleman.  I 
have  experienced  his  candour  upon  all  occasions." 

We  are  now,  fellow  citizens,  at  the  distance  of  nearly 
half  a  century  from  the  first  movements  of  the  government 
established  by  the  Constitution  thus  adopted,  and  it  is  not 
possible  to  give  an  intelligible  narrative  of  the  life  of  John 
Marshall,  without  a  glance  at  them  during  the  administration 
of  the  first  President.  The  principal  actors  in  them  have 
passed  away.  Their  conflicts  of  opinion, — their  struggles 
for  personal  triumph,  or  for  public  favour, — have  ceased  to 
divide  or  to  excite  us,  while  the  memory  of  their  talents 


36 


and  of  their  devotion  to  the  public  welfare,  is  perpetually 
coming  up  to  us  with  fresh  and  renewed  fragrance,  as  our 
senses  take  in  the  scene  of  universal  happiness  which  has 
crowned  their  labours.  In  referring  to  that  day,  it  is  our 
duty  and  delight,  not  only  to  remember  this,  but  especially 
that  we  are  speaking  of  one,  whose  heart  was  a  fountain  of 
good  will  to  all,  and  who  in  the  sharpest  encounters  of  party, 
was  a  stranger  to  every  feeling  that  embitters  or  degrades  it. 
No  man  of  truth  or  candour  ever  imputed  to  him  a  motive 
that  was  false  to  his  country.  His  venerable  form  would 
almost  rise  to  the  rebuke  of  one,  who  should  endeavour  to 
heighten  his  praise  by  imputing  such  a  motive  to  those  who 
were  his  political  opponents. 

The  friends  of  the  Constitution,  with  whom  the  name  of 
John  Marshall  will  ever  stand  the  first  and  most  illustrious, 
were  classed  before  and  after  its  adoption,  under  the  title  of 
federalists,  from  their  preference  and  support  of  the  federal 
union,  which  it  was  designed  to  create.  During  the  admin 
istrations  which  ensued,  the  apprehension  of  its  alleged 
tendency  to  overthrow  the  states,  and  to  destroy  American 
liberty,  as  it  had  not  been  entertained  by  them  at  any  time,  did 
not  induce  them  to  adopt  a  jealous  construction  of  its  powers. 
They  acted  upon  the  principle,  that  it  was  their  duty  to 
give  this  instrument  a  fair  interpretation,  and  fairly  to  exer 
cise  its  powers  in  furtherance  of  its  declared  design,  "  to 
form  a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to  our 
selves  and  our  posterity/'  As  the  sovereign  people  of  the 
states  had  substituted  the  Constitution  for  the  confederation, 
they  believed  that  it  consisted  as  little  with  their  engagement 
of  fidelity,  as  with  the  general  welfare,  to  make  it  a  confed 
eration  in  effect,  either  by  the  rules  by  which  it  was  ex- 


37 


pounded,  or  by  the  spirit  in  which  it  was  administered. 
They  regarded  the  states  as  strong  by  the  ten  thousand 
bonds  of  property  and  local  association,  and  by  the  great 
basis  of  internal  power  which  had  been  reserved  to  them  by 
the  people.  The  union  they  considered  as  destined  to  con 
tempt  and  speedy  extinction,  unless  the  powers  given  to  it 
should  be  used  in  the  spirit  of  the  gift,  to  make  it  in  its  own 
sphere,  what  the  states  were  in  theirs.  It  was  a  time,  how 
ever,  when  to  practise  upon  these  principles,  now  almost 
universally  professed,  was  to  encounter  the  fears  and  honest 
prejudices  of  a  large  portion  of  the  people,  to  a  greater 
degree  than  we  may  at  present  be  aware  of.  The  people 
had  been  reared  at  the  bosom  of  their  respective  states,  with 
little  experience  of  any  but  domestic  authority,  except  that 
which  was  really  foreign,  and  at  the  same  time  hostile ;  and 
they  were  not  unsusceptible  of  alarm  from  preparations  for 
a  government  which  in  some  aspects  appeared  to  be  external, 
though  it  was  truly  and  essentially  an  emanation  from  them 
selves.  The  system  was  untried.  What  it  certainly  would 
be,  was  not  known.  What  it  might  prove  to  be,  was  sin 
cerely  feared.  The  exercise  of  power  under  political  con 
stitutions  of  very  different  character,  being  in  many  instances 
discriminated  in  degree,  rather  than  in  kind,  its  application 
in  the  mildest  form  becoming  despotic  if  pressed  to  an  ex 
treme,  it  was  not  difficult  in  the  obscure  light  of  our  just 
dawning  government,  to  raise  to  an  excited  imagination  a 
phantom  of  terrific  threatenings,  from  the  first  acts  of  power, 
however  mild  and  benign. 

In  this  state  of  the  public  mind,  the  first  office  under  the 
Constitution  was  held  by  Washington,  to  whom,  if  to  any 
man  upon  earth,  universal  confidence  was  due,  for  the  quali 
ties  material  to  the  prosperous  issue  of  the  new  government. 
Nevertheless,  his  incomparable  moderation,  his  self-abandon- 


38 


ment  upon  all  occasions,  in  furtherance  of  the  public  weal, 
his  repeated  rejection  of  power,  trust  and  emolument,  his 
known  reluctance  to  accept  the  station,  even  at  the  unani 
mous  call  of  his  country,  none  of  these  could  relieve  his 
administration  from  the  fears  which  the  Constitution  had 
engendered. 

The  funding  of  the  debts  of  the  union,  and  the  assump 
tion  of  the  state  debts  contracted  in  thewar — a  proposed  duty 
upon  distilled  spirits — the  establishment  of  a  national  bank 
— an  increase  of  the  army  to  protect  the  western  frontier 
from  Indian  aggression — and  an  enlargement  of  the  duties 
on  impost  and  tonnage,  with  a  view  to  a  permanent  provi 
sion  for  the  discharge  of  the  public  debt,  instead  of  leaving 
it  to  annual  appropriations,  were  the  principal  transactions 
which  marked  the  first  official  term  of  the  first  President  of 
the  union;  and  we  may  ponder  them  as  constituting  an 
instructive  chapter  in  the  history  of  the  human  mind,  when 
acts  like  these  could  before  the  year  1793,  organize  this 
nation  into  parties,  who  continued  their  struggle  till  the 
authors  of  this  legislation  ceased  as  a  party  to  exist,  and 
the  fear  of  their  prevailing  policy  ceased  to  exist  with 
them. 

It  can  excite  no  surprise  in  those  who  are  familiar  with 
that  day,  that  in  the  intermediate  period,  between  the  pro 
clamation  of  neutrality  in  1793,  and  the  ratification  of  the 
British  treaty  in  1795,  an  endeavour  to  provide  an  armament 
of  six  frigates  for  naval  protection,  had  to  contend  with  the 
same  apprehension  of  federal  power;  and  that  it  was  ne 
cessary  to  palliate  this  first  effort  towards  the  foundation  of 
our  immortal  navy,  with  a  clause  which  suspended  further 
proceedings,  if  peace  should  take  place  with  the  regency  of 
Algiers. — It  should  allay  the  bitterness  of  parties  that  are, 


39 


and  are  to  come,  to  cast  their  eyes  back  to  the  still  visible 
distance  of  our  first  administrations,  and  to  see  how  little"of 
that  which  once  divided  the  country,  now  remains  to  dis 
criminate  us. 

No  state  in  the  union  took  an  earlier  or  more  decided  lead 
upon  the  questions  supposed  to  affect  the  power  of  the 
states,  than  Virginia.  Her  talents,  her  love  of  liberty,  her 
love  of  fame, 


the  spur  that  the  clear  spirit  doth  raise, 


(That  last  infirmity  of  noble  mind,) 

continued  to  make  her  voice  earnest,  clear,  and  determined, 
in  asserting  the  dangers  of  the  federal  administration,  as  it 
had  been,  in  opposing  the  Constitution.  At  the  first  meeting 
of  the  state  legislature  after  it  had  been  adopted,  the  political 
sentiments  of  that  body  were  such  as  to  send  the  opponents 
of  the  Constitution  to  the  Senate  of  the  United  States,  in 
exclusion  of  Mr.  Madison;  and  they  adopted  by  a  majority 
of  two  to  one,  resolutions  enjoining  Congress  to  call  a  con 
vention,  for  proposing  amendments  to  it,  to  the  effect,  if 
successful,  of  throwing  again  open  the  whole  subject  of 
union. 

Of  this  legislative  body,  Mr.  Marshall  was  a  member, 
representing  the  city  of  Richmond,  as  he  continued  to  do 
until  the  spring  of  1791. 

He  had  attained  a  high  professional  reputation,  offering 
every  thing  that  great  learning,  extraordinary  vigour  of  mind, 
and  the  purest  integrity,  can  place  within  the  reach  of  an 
eminent  lawyer.  He  was  a  favourite  with  the  people  of 
Virginia ;  and  in  a  professional  career,  undisturbed  by  poli- 


40 


tical  connexion,  there  was  nothing  to  obstruct  his  progress 
to  universal  regard  and  preference.  But  although  no  man, 
from  the  gentleness  of  his  nature  and  the  perfect  balance  of 
his  mind  and  affections,  could  be  freer  from  party  excite 
ment  than  he  was,  the  success  of  the  new  government  was 
near  to  his  heart.  He  had  laboured  strenuously  to  endue  it 
with  the  powers  it  possessed.  He  had  studied  its  princi 
ples,  with  as  little  disturbance  from  passion  or  prejudice  as 
our  nature  permits,  and  thoroughly  approved  them.  He  was 
moreover  devotedly,  and  by  hereditary  regard,  attached  to 
the  man,  to  whom  the  people  had  confided  the  exalted  trust 
of  first  administering  the  Constitution,  knew  and  appreciated 
his  wisdom,  his  moderation,  the  equipoise  of  his  passions, 
his  exemption  from  the  stain  of  selfish  ambition,  his  fear  of 
God,  and  his  love  of  country.  The  united  influence  of  these 
causes,  together  with  the  urgent  instances  of  his  friends, 
compelled  him  at  the  outset  of  the  government  to  disregard 
personal  inconvenience,  in  coming  to  its  support;  and  ac 
cordingly  for  successive  years,  on  the  theatre  of  his  native 
state,  where  the  sincerest  admiration  of  Washington,  did  not 
prevent,  nor  scarcely  mitigate  the  freest  strictures  upon  his 
administration,  Mr.  Marshall  gave  the  full  powers  of  his 
intellect  to  the  explanation  and  defence  of  its  measures. 

He  was  perhaps  the  fittest  of  his  cotemporaries  for  the 
performance  of  this  office.  It  was  impossible  to  charge  his 
life  with  a  reproach.  If  a  measure  was  condemned  for  its 
tendency  to  produce  corruption,  from  whom  could  its  defence 
come  with  more  effect,  than  from  one  who  was  known  to  be 
incorruptible  ?  If  it  was  assailed  for  perniciously  increasing 
the  lustre  or  the  influence  of  office,  who  could  confront  the 
charge  with  more  grace,  than  one  whose  simplicity  rejected 
all  the  artifices  by  which  weakness  is  disguised,  or  strength 
made  more  imposing  to  the  prejudices  of  men?  If  it  was 


41 


denounced  as  a  dangerous  excess  of  power,  whose  denial 
could  be  more  accredited,  than  that  of  a  lover  and  defender 
of  freedom  from  his  youth,  and  one  who  in  his  intercourse 
with  the  world,  disclaimed  the  distinction  and  authority 
even  of  his  own  talents  ?  And  above  all,  if  the  objection 
challenged  the  act  as  an  usurpation  upon  the  Constitution, 
who  was  there  then,  and  who  has  there  been  since,  that 
could  surpass,  or  in  all  respects  equal  him,  in  touching  the 
springs  by  which  the  inmost  sense  of  the  instrument  is  un 
locked,  and  displayed  to  view?  The  application  of  his 
powers  in  this  cause,  was  an  admirable  exercise  for  himself, 
enlarging  and  fortifying  his  mind  for  the  great  duties  he  was 
destined  to  perform.  It  preserved  the  warmth  of  his  heart, 
and  the  genial  flow  of  his  affections  towards  his  country, 
and  its  institutions,  and  if  success  and  conviction  did  not 
follow  his  exertions,  they  did  not  inflame  opposition,  nor 
provoke  resentments.  His  manner  of  debating  then  and 
ever  after  in  representative  bodies,  was  as  grave  as  truth  and 
reason  could  make  it.  He  trusted  to  these  alone  for  effect. 
He  resorted  to  none  of  those  arts  of  oratory  which  so  often 
disturb  their  influence;  and  if  he  failed  to  win  over  his 
opponents,  he  did  not  alienate  their  respect  and  good  will. 

He  declined  a  re-election  in  1792,  and  from  this  time 
until  1795,  continued  in  the  practice  of  his  profession. 

In  the  last  of  these  years  the  country  was  agitated  to  a 
degree  transcending  all  former  experience,  by  the  ratification 
of  the  treaty  with  Great  Britain.  Scarcely  any  public 
measure  which  in  the  sequel  has  done  so  much  good  and  so 
little  injury  to  the  nation,  has  been  in  the  outset  the  occa 
sion  of  more  general  and  intense  dissatisfaction.  While  the 
Constitution  was  in  the  hands  of  the  people  for  rejection  or 
adoption,  the  power  by  treaty,  to  regulate  our  relations  with 


42 


the  world,  and  to  affect  the  commerce  of  the  country  with 
the  obligatory  force  of  a  supreme  law,  without  the  inter 
vention  of  Congress,  was  an  undisputed  construction  of  its 
language,  and  was  regarded  in  some  of  the  conventions,  as 
one  of  its  most  dangerous  provisions.  In  the  excitement 
occasioned  by  the  treaty  with  Great  Britain,  this  construc 
tion  was  rejected.  The  authority  of  Congress  to  regulate 
commerce,  was  inferred  to  be  exclusive  from  the  general 
grant  of  the  power  to  that  department,  or  to  imply  a  final 
control  over  a  treaty  having  this  aspect;  and  even  the 
pledge  of  the  public  faith  for  the  execution  of  a  treaty,  was 
asserted  to  be  incomplete,  while  Congress  withheld  the 
appropriations  which  it  made  necessary.  We  may  perceive 
in  our  existing  relations  with  a  foreign  government,  how 
remarkably  the  opinions  of  the  people  upon  this  point,  have 
in  the  course  of  forty  years  converged  to  unanimity !  The 
question  was  then  new  and  of  infinite  moment.  It  was  the 
first  great  occasion  for  discussing  the  limits  of  the  treaty 
making  power,  for  it  was  the  first  treaty  upon  which  a  large 
portion  of  the  people,  with  whom  the  representative  branch 
was  likely  to  sympathize,  had  differed  from  the  executive ; 
and  it  was  a  crisis  moreover  in  which  war  with  England,  or 
discord  equivalent  to  war  with  France,  was  the  apparent 
alternative  of  a  decision  either  way. 

It  was  at  this  time  that  Mr.  Marshall  again  held  a  seat  in 
the  Legislature  of  Virginia,  to  which  the  sagacity  of  his 
friends  had  elected  him  against  his  consent.  The  Senators 
of  Virginia  had  refused  to  concur  in  the  ratification  of  the 
treaty.  An  opinion  of  great  influence  was  afterwards  ex 
pressed  in  that  state,  impeaching  the  treaty  as  one  in  which 
"the  rights,  the  interest,  the  honour  and  the  faith  of  the 
nation  were  grossly  sacrificed."  It  was  here  of  course 
that  the  constitutional  defect  as  well  as  every  other  objec- 


43 


tion  that  could  encourage  the  House  of  Representatives  to 
defeat  the  treaty  by  refusing  the  appropriations,  was  urged 
with  ah1  the  ardour  of  excited  feelings,  and  with  the  energy  of 
sincere  belief.  But  upon  a  question  of  constitutional  law,  no 
feelings  and  no  conviction  that  were  not  in  harmony  with 
the  truth,  could  resist  the  powers  of  John  Marshall.  The 
memory  of  the  surviving  witnesses  of  his  memorable  effort 
upon  that  occasion,  is  believed  to  be  the  only  record  of  it 
which  exists.  It  is  remembered  as  an  admirable  display  of 
the  finest  powers  of  reasoning,  accompanied  with  an  ex 
hibition  of  the  fullest  knowledge  and  comprehension  of  the 
history  and  scope  of  the  Constitution,  and  of  the  public 
interests  affected  by  the  treaty ;  and  its  effect  will  forever  be 
seen  in  the  resolution  which  the  house  adopted.  It  did  not 
touch  the  constitutional  objection  in  any  of  its  forms,  nor 
directly  question  the  expediency  of  the  treaty;  but  it  ex 
pressed  the  highest  sense  of  the  integrity,  patriotism  and 
wisdom  of  the  President  of  the  United  States,  and  declared 
that  in  approving  the  votes  of  the  senators  of  that  state  re 
lative  to  the  treaty,  the  assembly  did  in  no  wise  mean  to 
censure  the  motives  which  influenced  him  to  the  ratification. 

This  period  of  the  life  of  Chief  Justice  Marshall,  taken 
in  connection  with  that  which  preceded,  and  contemplated 
in  reference  to  what  finally  proved  to  be  his  great  duty,  and 
the  crown  of  his  public  services,  cannot  be  regarded  without 
emotion,  by  any  one  who  acknowledges  a  providence  in  the 
affairs  of  men. 

The  day  was  to  come,  and  was  not  distant,  when  laws 
enacted  by  the  representatives  of  a  free  and  sovereign  peo 
ple,  were  to  be  submitted  to  a  comparison  with  the  Constitu 
tion  of  the  nation,  and  to  stand  or  fall  by  the  decrees  of  a 
court  destitute  of  the  smallest  portion  of  political  power,  and 


44 


having  no  independent  authority  but  that  of  reason.  The 
passions  of  the  people,  the  interests  of  the  states,  and  the 
power  of  both,  were  to  be  controlled  and  overruled  in  this 
name;  or  if  it  should  be  despised  and  rejected,  the  only 
bond  of  the  union  that  would  remain,  was  to  be  that  which 
alone  remains  to  nations  after  reason  and  law  have  departed 
from  the  earth. 

The  mind  of  man  cannot  conceive  of  a  finer  contrivance 
than  the  judicial  power  of  the  union  to  give  regularity  and 
harmony  to  a  system,  the  parts  of  which  acknowledge  inde 
pendent  laws,  and  gravitate  as  it  were  towards  different 
suns,  while  the  whole  move  in  one  common  orbit,  and  are 
bound  to  obey  a  central  attraction  for  the  maintenance  of 
internal  order,  and  of  their  relations  to  the  external  world. 
But  the  essence  of  this  attraction  is  reason  rather  than  force, 
and  the  great  fountain  which  supplies  it,  is  in  this  supreme 
and  central  court;  and  we  might  tremble  to  ask,  where 
would  the  greater  disturbances  of  the  system  look  for  their 
corrective,  if  the  supply  of  this  celestial  influence  should 
fail,  if  her  bosom  should  cease  to  be  the  seat  of  the  law,  and 
her  voice  the  harmony  of  the  union. 

For  the  first  of  the  offices  in  this  august  court,  what  vir 
tues  then,  what  intellectual  powers,  what  training  could  have 
more  the  cast  of  apparent  destination,  than  those  of  this 
eminent  man.  To  the  eye  of  the  world,  his  connection  with 
the  war,  with  the  confederacy,  with  the  adoption  of  the  Con 
stitution,  with  the  conflicts  of  opinion  it  excited,  and  the 
contests  which  its  first  operations  produced,  may  have  ap 
peared  casual.  His  consent  to  serve  in  legislative  assemblies 
was  often  reluctant  and  sometimes  withheld.  Office,  power 
and  public  honours,  he  never  sought.  They  sought  him, 
and  never  found  him  prepared  to  welcome  them,  except  as 


a  sense  of  duty  commanded.  The  last  thing  to  which  his 
eye  was  directed,  was  probably  the  office  which  he  finally 
held.  But  we  can  now  look  back,  and  see  with  certainty, 
that  it  was  this  very  combination  of  patriot  soldier,  lawyer, 
and  statesman,  and  strenuous  defender  and  expounder  of  the 
Constitution,  united  with  his  republican  simplicity  of  man 
ners,  the  amenity  of  his  temper,  and  his  total  exemption 
from  that  stain  by  which  the  angels  fell,  that  was  filling 
the  measure  of  his  accomplishments  for  it,  and  preparing 
the  whole  country  to  acknowledge  that  no  one  could  fill  it  so 
well. 

After  the  argument  upon  the  British  treaty,  which  made 
him  universally  known,  Mr.  Marshall  was  regarded  as  be 
longing  to  the  nation.  The  President  offered  to  his  accept 
ance  the  office  of  Attorney  General  of  the  United  States, 
which  he  felt  himself  at  liberty  to  decline.  Upon  the  recall 
of  Mr.  Monroe  from  France  in  the  year  1796,  he  was  in 
vited  to  take  the  appointment  of  minister  to  that  nation,  but 
he  again  declined.  He  continued  in  the  Legislature  of  Vir 
ginia,  and  prosecuted  his  profession  with  assiduity  and  still 
increasing  reputation.  It  was  in  this  year,  and  at  the  bar  of 
the  Supreme  Court  of  the  United  States,  in  this  city,  that  he 
justified  his  professional  fame  by  his  argument  in  the  great 
cause  of  the  Virginia  debts.  In  the  following  year  when 
under  peculiar  circumstances  it  was  deemed  proper  to  make 
a  last  effort  to  avert  hostilities  with  France  by  a  special  mis 
sion,  his  sense  of  patriotic  duty  overcame  his  reluctance,  and 
he  accepted  the  appointment  offered  to  him,  in  conjunction 
with  General  Pinckney  and  Mr.  Gerry,  by  Mr.  Adams  then 
President  of  the  United  States. 

No  man  in  the  nation  was  fitter  for  the  office  by  firmness, 
by  moderation,  by  true  American  spirit,  extensive  know- 


46 


ledge  of  political  events,  and  thorough  competency  to  justify 
the  course  of  Washington's  administration  towards  France. 
It  was  at  the  same  time  a  post  of  great  difficulty  and  respon 
sibility.  From  the  first  outbreaking  of  that  revolution  which 
he  has  described  as  "  the  admiration,  the  wonder,  and  the 
terror  of  the  civilized  world,"  the  gratitude  of  this  people 
for  aid  in  the  revolutionary  war,  and  their  sympathy  with 
the  cause  of  freedom,  gave  them  the  strongest  interest  in 
the  establishment  of  a  free  government  in  France.  They 
felt  it  universally,  and  they  expressed  it  in  every  form  that 
grateful  hearts  could  suggest.  The  affection  was  deep,  sin 
cere,  and  enthusiastic.  The  first  excesses  of  the  revolution 
did  not  arrest,  nor  to  any  great  degree  abate,  the  force  of 
this  generous  current.  They  were  attributed  to  the  strength 
of  the  bondage  by  which  the  people  of  France  had  been 
chained  to  the  earth,  and  which  nothing  but  convulsions 
could  shatter  to  pieces.  But  as  from  day  to  day  they  be 
came  more  frightful  in  that  career  which  was  to  cover 
France  with  blood  and  horror,  many  of  her  sincerest  friends, 
more  than  doubted  whether  these  were  the  lineaments  of 
true  liberty,  and  whether  it  was  the  duty  of  gratitude  to 
admire  and  to  praise  them.  Upon  this  point,  and  possibly 
because  we  were  so  upon  others,  we  became  a  divided  peo 
ple;  and  when  the  declaration  of  war  by  France  against 
Great  Britain,  made  it  her  interest  as  it  was  her  undisguised 
purpose  to  draw  us  into  an  alliance  with  her,  it  required  all 
the  firmness  and  personal  influence  of  that  immortal  man, 
who  was  then  at  the  head  of  our  government,  to  hold  our 
nation  to  the  safe  and  middle  path  of  neutrality.  Our  treaty 
with  Great  Britain,  increased  the  division  among  ourselves, 
aggravated  the  complaints  of  France,  and  at  length  led  to  a 
scene  of  unparalleled  outrage  upon  our  property,  our  peace, 
and  our  independence.  Pursuing  that  policy  which  from 
the  outset  marked  her  course  towards  those  who  either  op- 


47 


posed  or  stood  aloof  from  her,  France  openly  attempted  to 
separate  this  people  from  those  whom  they  had  selected  to 
administer  their  government.  In  November,  1796,  the 
French  minister  to  this  country,  in  announcing  to  the  Secre 
tary  of  State  by  order  of  the  directory,  the  suspension  of 
his  functions,  concluded  his  letter  by  an  inflammatory  apos 
trophe  to  the  American  people,  calling  upon  them  to  remem 
ber  that  this  government  had  made  a  treaty  of  amity  with 
the  tyrant  of  the  seas,  who  had  declared  a  war  of  death  to 
the  French  nation  for  having  cemented  with  its  blood  the 
independence  of  the  United  States.  "  Let  your  government 
return  to  itself,"  was  its  concluding  sentence,  "and  you 
will  find  in  Frenchmen  faithful  friends  and  generous  allies." 

In  the  same  spirit  the  Directory  refused  to  receive  Gene 
ral  Pinckney,  the  minister  appointed  to  succeed  Mr.  Mon 
roe,  and  compelled  him  to  leave  the  territories  of  the  Repub 
lic  ;  and  its  President,  in  his  formal  address  at  the  audience 
of  leave  given  to  Mr.  Monroe,  declared  that  France  would 
not  "  degrade  herself  by  calculating  the  consequences  of  the 
condescendence  of  the  American  government  to  the  sugges 
tions  of  her  former  tyrants;"  but  the  American  minister  was 
requested  to  assure  the  "  good  American  people,  that  like 
them  France  adored  Liberty,  that  they  would  always  have 
her  esteem,  and  that  they  would  find  in  the  French  people 
that  republican  generosity,  which  knows  how  to  grant  peace, 
as  it  does  to  cause  its  sovereignty  to  be  respected." 

What,  my  fellow  citizens,  would  be  the  effect  of  an  ap 
peal  in  the  same  spirit  to  the  American  people,  at  the  present 
hour?  What  would  be  the  response  at  this  day,  to  such  an 
invasion  of  American  independence  ?  One  universal  cry  of 
disdain  and  defiance  from  the  farthest  extremity  of  Maine  to 
the  Gulf  of  Mexico.  In  party  divisions  still  continuing,  and 


48 


never  to  cease,  the  inseparable  attendant  of  all  the  free 
states  that  have  ever  existed,  the  mingled  good  and  evil  of 
the  best  governments  that  man  has  ever  formed,  we  strive 
for  the  power  to  order  and  appoint  our  own  house  as  we 
deem  best;  but  the  very  struggle  has  bound  us  the  more  to 
our  country,  and  would  indignantly  throw  off  from  the  con 
test  the  intrusion  of  aliens,  as  an  imputation  and  stain  upon 
our  filial  love. 

It  was  at  a  special  session  of  Congress,  convened  upon 
the  receipt  of  the  despatches  of  General  Pinckney,  that  the 
President  of  the  United  States,  on  the  31st  May,  1797, 
nominated  that  gentleman,  together  with  Francis  Dana, 
chief  justice  of  the  state  of  Massachusetts,  and  General  John 
Marshall,  to  be  Ministers  to  the  French  Republic.  Mr. 
Gerry  was  subsequently  nominated  upon  Mr.  Dana's  de 
clining  to  accept  the  appointment.  In  the  message  to  the 
Senate  which  made  this  nomination,  the  President  stated, 
that  in  the  then  critical  and  singular  circumstances,  it  was 
of  great  importance  to  engage  the  confidence  of  the  great 
portions  of  the  Union  in  the  character  of  the  persons  em 
ployed,  and  the  measures  which  ought  to  be  adopted ;  and 
he  had  therefore  thought  it  expedient  to  nominate  persons  of 
talents  and  integrity,  long  known  and  intrusted  in  the  three 
great  divisions  of  the  Union;  and  in  his  message  to  the 
House  of  Representatives,  with  a  spirit  and  fearlessness  in 
the  cause  of  his  country,  in  which  Mr.  Adams  was  second 
to  no  man  that  ever  lived,  he  said,  "  such  attempts  to  sepa 
rate  the  people  from  their  government,  to  persuade  them 
that  they  had  different  affections,  principles  and  interests, 
from  those  of  their  fellow  citizens,  whom  they  had  them 
selves  chosen  to  manage  their  common  concerns,  and  thus 
to  produce  divisions  fatal  to  our  peace,  ought  to  be  repelled 
with  a  decision  which  should  convince  France  and  the  world, 


49 


that  we  were  not  a  degraded  people,  humiliated  under  a 
colonial  spirit  of  fear,  and  sense  of  inferiority,  fitted  to  be 
the  miserable  instruments  of  foreign  influence,  and  regard 
less  of  honour,  character  and  interest."  Immortal  senti 
ments,  worthy  of  a  founder  of  the  republic,  and  worthy  to 
unite  with  the  blood  of  her  own  citizens,  in  cementing  her 
independence ! 

It  was  reserved  for  such  a  revolution  as  that  of  France,  to 
add  the  page  to  history  which  records  the  course  and 
termination  of  this  celebrated  mission.  The  ministers  were 
surrounded  in  Paris  by  the  apparatus  of  a  revolutionary 
power,  the  terrors  of  which  were  only  alleviated  by  com 
parison  with  some  of  its  preceding  forms.  They  were 
unaccredited,  unrespected,  unprotected,  and  were  daily  suf 
fering  in  their  persons  both  contumely  and  insult.  They 
were  assailed  informally,  but  at  the  undoubted  instigation  of 
the  minister  of  foreign  affairs,  with  the  flagitious  demand  of 
money  for  official  use  and  distribution,  as  the  conditional 
price  of  the  liberty  to  negotiate  for  an  adjustment  of  differ 
ences  ;  and  they  were  menaced,  if  they  should  refuse  to  pay 
the  bribe,  that  party  in  their  own  country,  would  and  should 
renounce  them  as  corrupted  by  British  influence  to  rupture 
the  negotiation. 

Nothing  however  could  shake  the  constant  minds  of  the 
American  ministers.  No  unworthy  fear  could  make  them 
abate  one  jot  or  tittle  of  their  whole  duty  to  their  country. 
They  silenced  the  panders  to  this  infamous  venality  with 
the  answer  of  "no,  no,  not  a  sixpence;"  and  though  denied 
the  privilege  of  negotiation,  they  gained  the  whole  merit, 
and  perhaps  more  than  the  whole  benefit  of  it,  by  forcing 
upon  the  minister  of  foreign  affairs,  before  they  received 
their  passports,  a  defence  of  their  country,  and  a  bill  of 


accusations  against  France,  so  full,  so  clear,  so  profound  in 
its  arguments,  and  withal  so  dignified  and  moderate  in  its 
tone,  so  truly  and  thoroughly  American  in  its  whole  spirit, 
that  it  did  not  admit  of  refutation,  nor  of  any  limitation  or 
qualification  of  praise. 

The  letters  of  the  17th  January  and  3d  April,  1798,  to 
Talleyrand  the  minister  of  foreign  relations,  will  reward 
perusal  at  all  times  as  admirable  specimens  of  diplomacy. 
They  have  always  been  attributed  to  the  pen  of  Mr.  Mar 
shall.  They  bear  internal  marks  of  it.  We  have  since 
become  familiar  with  his  simple  and  masculine  style, — his 
direct,  connected,  and  demonstrative  reasoning — the  infre- 
quency  of  his  resort  to  illustrations,  and  the  pertinency  and 
truth  of  the  few  which  he  uses — the  absence  of  all  violent 
assertion — the  impersonal  form  of  his  positions,  and  espe 
cially  with  the  candour,  as  much  the  character  of  the  man 
as  of  his  writings,  with  which  he  allows  to  the  opposing 
argument  its  fair  strength,  without  attempting  to  elude  it,  or 
escape  from  it,  by  a  subtlety.  Every  line  that  he  has  written 
bears  the  stamp  of  sincerity ;  and  if  his  arguments  fail  to 
produce  conviction,  they  never  raise  a  doubt,  nor  the  shadow 
of  a  doubt,  that  they  proceed  from  it. 

The  impression  made  by  the  despatches  of  the  American 
ministers  was  immediate  and  extensive.  Mr.  Marshall  ar 
rived  in  New  York  on  the  17th  of  June,  1798.  His  entrance 
into  this  city  on  the  19th,  had  the  eclat  of  a  triumph.  The 
military  corps  escorted  him  from  Frankford  to  the  city, 
where  the  citizens  crowded  his  lodgings  to  testify  their 
veneration  and  gratitude.  Public  addresses  were  made  to 
him,  breathing  sentiments  of  the  liveliest  affection  and  re 
spect.  A  public  dinner  was  given  to  him  by  members  of 
both  houses  of  Congress  "  as  an  evidence  of  affection  for 


"  liis  person,  and  of  their  grateful  approbation  of  the  patriotic 
"firmness,  with  which  he  sustained  the  dignity  of  his 
"  country  during  his  important  mission;"  and  the  country  at 
large  responded  with  one  voice  to  the  sentiment  pro 
nounced  at  this  celebration,  "Millions  for  defence,  but  not 
"  a  cent  for  tribute." 

Mr.  Marshall  immediately  after  this  returned  to  Virginia, 
and  renewed  his  professional  practice  with  a  determination 
to  be  no  further  connected  with  political  life ;  and  nothing 
perhaps  would  have  shaken  his  purpose,  but  an  appeal 
which  no  determination  could  resist.  We  are  indebted  for 
the  fact  to  a  memoir  of  the  Chief  Justice  which  claims  to 
have  derived  it  from  an  authentic  source.*  General  Wash 
ington,  who  had  been  appointed  to  the  command  of  the 
armies  raised  by  Congress  for  the  expected  hostilities  with 
France,  and  who  was  afflicted  by  the  spectacle  of  parties 
which  still  continued  to  cloud  the  country,  invited  Mr.  Mar 
shall  to  visit  him  at  Mount  Vernon.  He  there  explained  to 
him  his  views  of  the  perilous  crisis,  pressed  upon  him  with 
peculiar  solemnity  the  duty  which  such  men  upon  such  occa 
sions  owe  to  their  country  in  disregard  of  their  private  interests, 
and  urged  him  to  become  a  candidate  for  Congress.  The 
more  than  sufficient  motives  for  this  request,  were  doubtless 
the  commanding  talents  of  Mr.  Marshall,  his  familiarity 
with  every  branch  of  our  foreign  relations,  the  high  reputa 
tion  which  he  had  acquired  in  the  recent  mission,  and  espe 
cially  the  rare  union  of  gentleness  and  firmness  for  which 
he  was  universally  known,  and  which  made  him  as  incapable 
of  party  excess,  as  he  was  of  retreating  before  party  oppo 
sition.  But  his  reluctance  was  great,  and  he  yielded  it  only 
to  wishes,  which  upon  a  question  of  patriotic  duty  had  the 

*  National  Gallery  of  Portraits,  Part  III. 


52 


authority  of  law.     He  accordingly  became  a  candidate,  and 
was  elected  in  the  spring  of  1799. 

It  was  a  rare  fortune,  and  the  highest  possible  praise,  to 
be  thought  worthy  of  this  solicitation  by  that  extraordinary 
person,  who  was  surpassed  by  no  one  in  his  judgment  of 
men,  or  in  his  love  of  virtue  or  of  country ; — and  it  was  a 
striking  vicissitude,  which,  as  the  first  act  of  Mr.  Marshall 
in  the  succeeding  Congress,  imposed  upon  him  the  afflictive 
duty  of  announcing  on  the  18th  of  December  the  death  of 
"the  hero,  the  patriot,  and  the  sage  of  America."  Those 
who  were  present  on  the  occasion,  can  never  forget  the 
suppressed  voice,  and  deep  emotion,  with  which  he  in 
troduced  the  subject  on  the  following  day;  or  the  thrill 
which  pervaded  the  house  at  the  concluding  resolution, 
which  ascribed  to  Washington  the  transcendent  praise  and 
merit  of  being  "first  in  war,  first  in  peace,  and  first  in  the 
hearts  of  his  countrymen."  The  biography  of  Washing 
ton  attributes  to  General  Lee  of  Virginia  the  merit  of  this 
inimitable  description,  and  modestly  withholds  the  name 
of  the  member,  whose  introductory  remarks  were  in  all 
respects  worthy  of  such  a  termination. 

The  house  of  representatives  in  which  Mr.  Marshall  had 
a  seat,  was  perhaps  never  exceeded,  in  the  number  of  its 
accomplished  debaters,  or  in  the  spirit  with  which  they  con 
tended  for  the  prize  of  public  approbation.  It  was  the  last 
which  convened  in  this  city,  and  furnished  a  continual  ban 
quet  to  such  as  had  the  taste  to  relish  the  encounter  of  minds 
of  the  first  order,  stimulated  to  their  highest  efforts,  and 
sustained  by  the  mutual  consciousness  of  patriotic  motives. 
The  course  of  this  eminent  man,  as  a  member  of  it,  was 
such  as  all  impartial  persons  must  review  without  a  cen 
sure.  His  principles  of  government  were  fixed,  his  con- 


53 

fidence  in  the  administration  was  great,  his  apprehensions  of 
public  mischief  from  a  radical  change  of  its  measures  was 
sincere,  and  he  neither  deviated  from  the  path  which  these 
sentiments  prescribed,  nor  faltered  in  it.  But  there  was 
that  about  him  which  defended  him  from  the  assaults  of 
party,  and  raised  him  above  its  suspicions.  If  he  was  a 
party  man,  he  was  so  by  position,  and  not  from  temper,  or 
partial  views.  The  homage  which  is  paid  to  sincerity, 
even  by  those  who  do  not  practise  it,  was  uniformly  ac 
corded  to  him ;  and  the  self-balanced  mind  which  appeared 
in  all  he  said  and  did,  was  an  admitted  proof  that  he  drew 
from  his  own  convictions,  even  that  which  went  to  sustain 
the  efforts  and  to  augment  the  resources  of  party. 

In  a  certain  description  of  cases,  those  of  which  the  law 
or  the  Constitution  formed  the  main  part,  he  was  confessedly 
the  first  man  in  the  house.  When  he  discussed  them,  he 
exhausted  them ;  nothing  more  remained  to  be  said,  and  the 
impression  of  his  argument  effaced  that  of  every  one  else. 
Of  this  class,  was  the  resolution  of  Mr.  Livingston,  im 
peaching  an  order  of  the  executive,  under  a  clause  of  the 
treaty  with  Great  Britain,  to  surrender  the  person  of  Jona 
than  Robbins  upon  a  charge  of  murder  committed  on  board 
a  British  frigate.  It  was  a  question  involving  many  of  the 
greatest  subjects  that  can  be  presented  for  debate,  the  con 
struction  of  the  treaty,  the  principles  of  the  law  of  nations, 
the  constitutional  powers  of  the  executive,  and  those  also  of 
the  judicial  department.  Upon  such  topics,  however  dark 
to  others,  his  mind  could  by  its  own  clear  light 

sit  in  the  centre,  and  enjoy  bright  day. 

The  speech  which  he  delivered  upon  this  question  is  be 
lieved  to  be  the  only  one  that  he  ever  revised,  and  it  was 
worthy  of  the  care.  It  has  all  the  merits,  and  nearly  all  the 


54 


weight  of  a  judicial  sentence.  It  is  throughout  inspired  by 
the  purest  reason,  and  the  most  copious  and  accurate  learn 
ing.  It  separates  the  executive  from  the  judicial  power  by 
a  line  so  distinct,  and  a  discrimination  so  wise,  that  all  can 
perceive  and  approve  it.  It  demonstrated  that  the  surrender 
was  an  act  of  political  power  which  belonged  to  the  execu 
tive  ;  and  by  excluding  all  such  power  from  the  grant  of  the 
Constitution  to  the  judiciary,  it  prepared  a  pillow  of  repose 
for  that  department,  where  the  success  of  the  opposite  argu 
ment  would  have  planted  thorns. 

It  has  been  said  that  his  course  in  Congress  was  governed 
by  his  own  convictions  of  right.  No  act  of  Congress  during 
that  administration  was  more  thoroughly  associated  with 
party,  than  one  of  the  previous  session,  commonly  known, 
from  its  second  section,  by  the  name  of  the  Sedition  Law. 
He  had  not  voted  for  it.  He  was  not  in  Congress  at  the 
time  of  its  enactment  ;  but  he  voted  for  the  repeal  of  the 
obnoxious  section.  Upon  the  introduction  of  a  resolution 
to  that  effect,  the  journal  of  the  house  records  his  vote  in 
the  affirmative,  while  the  names  of  all  those  with  whom  he 
generally  concurred,  are  to  be  found  on  the  other  side. 

There  were  measures  of  a  different  description  which  he 
promoted  with  the  fondest  zeal,  and  in  conformity  with  the 
nearly  universal  wishes  of  the  country.  His  personal  ven 
eration  for  Washington  was  the  fruit  of  long  observation 
and  intercourse.  It  heightened  his  sense  of  the  immeasurable 
debt,  which  in  common  with  all,  he  believed  was  due  to  the 
father  of  his  country  ;  and  not  satisfied  with  that  cheap  dis 
charge  of  it,  which  is  found  in  the  cold  apothegm,  "  that 
the  best  monument  of  a  patriot  and  hero,  is  in  the  bosoms 
of  his  countrymen,"  he  deemed  it  the  sacred  duty  of  Con 
gress  to  erect  one,  which  should  represent  to  the  senses  the 


kindred  image  of  the  heart,  and  point  the  world  and  posterity, 
to  all  that  was  mortal  of  the  founder  of  the  republic.  He 
submitted  the  resolution  which  invited  the  people  to  an 
universal  commemoration  of  their  grief  for  his  death,  on  the 
anniversary  of  Washington's  birth.  He  submitted  that  also 
which  asked  and  obtained  for  the  nation  the  precious  deposit 
of  his  remains ;  and  he  reported  the  bill  which  passed  the 
house  of  representatives  for  erecting  a  Mausoleum  in  the 
city  of  Washington :  but  the  Senate  postponed  it  to  the 
next  session,  and  he  had  then  ceased  to  be  a  representative 
in  Congress. 

His  connection  with  the  house  of  representatives  was 
terminated  by  his  appointment  at  the  close  of  the  session, 
as  secretary  of  war.  He  was  soon  after  appointed  secretary 
of  state,  and  continued  in  this  office  the  remainder  of  the 
year. 

Although  he  held  the  latter  office  but  a  few  months,  the 
department  contains  the  proof  of  his  great  abilities  and  patri 
otic  spirit.  It  was  his  duty  to  correspond  with  the  Ameri 
can  Minister  in  England,  upon  the  interrupted  execution  of 
the  6th  article  of  the  British  treaty,  in  regard  to  compensa 
tion  to  British  creditors,  and  upon  the  questions  of  contra 
band,  blockade,  and  impressment,  which  threatened  to 
destroy  the  peace  of  the  two  countries  ;  and  it  is  impossible 
to  imagine  a  finer  spirit,  more  fearless,  more  dignified,  more 
conciliatory,  or  more  true  to  his  country,  than  animates  his 
instructions  to  Mr.  King.  Our  relations  with  England  were 
now  supposed  to  be  in  danger  from  a  pending  negotiation 
with  France,  and  thus  in  some  respects  the  language  which 
he  held  to  France  in  1798,  became  necessary  towards  Eng 
land.  It  was  adopted  without  hesitation.  "  The  United 
States,"  he  said,  "do  not  hold  themselves  in  any  degree 


"  responsible  to  France  or  to  Great  Britain  for  their  nego- 
"  tiations  with  the  one  or  the  other  of  those  powers,  but 
"  they  are  ready  to  make  amicable  and  reasonable  explana- 
"  tions  with  either.  The  aggressions  sometimes  of  one  and 
"sometimes  of  another  belligerent  power,  have  forced  us  to 
"  contemplate  and  prepare  for  war  as  a  probable  event.  We 
"  have  repelled,  and  we  will  continue  to  repel,  injuries  not 
"  doubtful  in  their  nature,  and  hostilities  not  to  be  misunder- 
"  stood.  But  this  is  a  situation  of  necessity,  not  of  choice. 
"  It  is  one  in  which  we  are  placed  not  by  our  own  acts,  but 
"  by  the  acts  of  others,  and  which  we  change  as  soon  as 
"  the  conduct  of  others  will  permit  us  to  change  it." — 
This  is  the  spirit,  this  is  the  temper,  that  gives  dignity 
and  security  to  peace,  and  carries  into  war  the  hearts  of  an 
united  people!  His  despatch  of  the  20th  September,  1800, 
is  a  noble  specimen  of  the  first  order  of  state  papers,  and 
shows  the  most  finished  adaptation  of  parts  for  the  station 
of  an  American  Secretary  of  State. 

I  have  now,  my  fellow  citizens,  defectively  traced  the  life 
of  this  eminent  man  to  the  age  of  forty -five ;  and  you  have 
seen  him  from  his  youth  upward,  engaged  in  various  sta 
tions  and  offices)  tending  successively  to  corroborate  his 
health,  to  expand  his  affections,  to  develop  his  mind,  to  en 
rich  it  with  the  stores  of  legal  science,  to  familiarize  him 
with  public  affairs,  and  with  the  principles  of  the  Constitu 
tion,  and  before  little  more  than  half  his  life  had  run  out, 
producing  from  the  materials  supplied  by  a  most  bountiful 
nature,  a  consummate  work,  pre-eminently  fitted  for  the  ju 
dicial  department  of  the  Federal  Government.  To  the  first 
office  of  this  department  he  was  appointed  on  the  31st  of 
January,  1801. 

At  the  date  of  this  appointment,  the  Constitution  had  been 


57 


more  frequently  discussed  in  deliberative  assemblies,  than  in 
the  Supreme  Court  of  the  United  States.  Circumstances 
had  not  yet  called  for  the  intervention  of  that  court  upon 
questions  opening  the  whole  scheme  of  the  Constitution,  and 
thereby  determining  the  rules  for  its  interpretation ;  nor  had 
any  thing  of  previous  occurrence  established  the  meaning  of 
some  of  the  most  important  provisions  which  restrain  the 
powers  of  the  states.  The  Constitution  is  undoubtedly  clear 
in  most  of  its  clauses.  In  all  its  parts  it  is  perhaps  as  free 
from  doubt  or  obscurity,  as  the  general  language  of  a  Con 
stitution  permits.  But  a  Constitution  has  necessarily  some 
complication  in  its  structure,  and  language  itself  is  not  a 
finished  work.  The  Constitution  of  the  United  States  has 
been  truly  called  an  enumeration  of  powers,  and  not  a  de 
finition  of  them.  It  cannot  therefore  surprise  us,  nor  does 
it  take  from  its  merit,  that  the  language  of  the  Constitution 
required  interpretation.  It  is  true  of  the  time  when  this  ap 
pointment  was  made,  that  in  many  parts  of  the  greatest  dif 
ficulty  and  delicacy,  it  had  not  then  received  a  judicial  in 
terpretation. 

It  was  obvious  moreover  at  that  time,  that  the  rapidly 
augmenting  transactions  and  legislation  of  the  states,  and 
their  increasing  numbers  also,  must  within  the  compass  of  a 
few  years,  present  cases  of  interference  between  the  laws  of 
the  states  and  the  Constitution,  and  bring  up  for  discussion 
those  embarrassing  questions  from  which  the  earlier  days  of 
the  Union  had  been  exempt. 

For  the  duty  of  leading  the  highest  court  in  the  country 
in  the  adjudication  of  questions  of  such  magnitude,  as  well 
as  of  controversies  determinable  by  the  laws  of  all  the  states, 
and  by  the  code  of  public  law,  including  a  range  of  inquiries 
exceeding  that  of  any  other  judicial  tribunal  that  is  known 


58 


to  us,  was  this  illustrious  person  set  apart ;  and  when  we 
now  look  back  upon  the  thirty-four  years  of  unimpaired 
vigour  that  he  gave  to  the  work,  the  extent  to  which  the 
court  has  explained  the  Constitution,  and  sustained  its  su 
premacy,  the  principles  of  interpretation  it  has  established 
for  the  decision  of  future  controversy,  and  the  confirmation 
it  has  given  to  all  the  blessings  of  life,  by  asserting  and  up 
holding  the  majesty  of  the  law,  we  are  lost  in  admiration  of 
the  man,  and  in  gratitude  to  heaven  for  his  beneficent  life. 

Rare  indeed  were  the  qualifications  which  he  brought  to 
the  station,  and  which  continued  to  be  more  and  more  de 
veloped  the  longer  he  held  it. 

He  was  endued  by  nature  with  a  patience  that  was  never 
surpassed ; — patience  to  hear  that  which  he  knew  already, 
that  which  he  disapproved,  that  which  questioned  himself. — 
When  he  ceased  to  hear,  it  was  not  because  his  patience 
was  exhausted,  but  because  it  ceased  to  be  a  virtue. 

His  carriage  in  the  discharge  of  his  judicial  business,  was 
faultless.  Whether  the  argument  was  animated  or  dull,  in 
structive  or  superficial,  the  regard  of  his  expressive  eye  was 
an  assurance  that  nothing  that  ought  to  affect  the  cause,  was 
lost  by  inattention  or  indifference,  and  the  courtesy  of  his 
general  manner  was  only  so  far  restrained  on  the  Bench,  as 
was  necessary  for  the  dignity  of  office,  and  for  the  suppres 
sion  of  familiarity. 

His  industry  and  powers  of  labour,  when  contemplated  in 
connection  with  his  social  temper,  show  a  facility  that  does 
not  generally  belong  to  parts  of  such  strength.  There  re 
main  behind  him  nearly  thirty  volumes  of  copiously  reasoned 
decisions,  greater  in  difficulty  and  labour,  than  probably 


59 


have  been  made  in  any  other  court  during  the  life  of  a  single 
judge !  yet  he  participated  in  them  all,  and  in  those  of 
greatest  difficulty,  his  pen  has  most  frequently  drawn  up  the 
judgment;  and  in  the  midst  of  his  judicial  duties,  he  com 
posed  and  published  in  the  year  1804,  a  copious  biography 
of  Washington,  surpassing  in  authenticity  and  minute  accu 
racy,  any  public  history  with  which  we  are  acquainted.  He 
found  time  also  to  revise  it,  and  to  publish  a  second  edition, 
separating  the  History  of  the  American  Colonies  from  the 
Biography,  and  to  prepare  with  his  own  pen  an  edition  of 
the  latter  for  the  use  of  schools.  Every  part  of  it  is  marked 
with  the  scrupulous  veracity  of  a  judicial  exposition ;  and 
it  shows  moreover,  how  deeply  the  writer  was  imbued 
with  that  spirit  which  will  live  after  all  the  compositions  of 
men  shall  be  forgotten, — the  spirit  of  charity,  which  could 
indite  a  history  of  the  Revolution  and  of  parties,  in  which 
he  was  a  conspicuous  actor,  without  discolouring  his  pages 
with  the  slightest  infusion  of  gall.  It  could  not  be  written 
with  more  candour  an  hundred  years  hence.  It  has  not  been 
challenged  for  the  want  of  it,  but  in  a  single  instance,  and 
that  has  been  refuted  by  himself  with  irresistible  force  of 
argument,  as  well  as  with  unexhausted  benignity  of  temper. 

To  qualities  such  as  these,  he  joined  an  immoveable  firm 
ness  befitting  the  office  of  presiding  judge,  in  the  highest 
tribunal  of  the  country.  It  was  not  the  result  of  excited 
feeling,  and  consequently  never  rose  or  fell  with  the  emo 
tions  of  the  day.  It  was  the  constitution  of  his  nature,  and 
sprung  from  the  composure  of  a  mind  undisturbed  by  doubt, 
and  of  a  heart  unsusceptible  of  fear.  He  thought  not  of  the 
fleeting  judgments  and  commentaries  of  men;  and  although 
he  was  not  indifferent  to  their  approbation,  it  was  not  the 
compass  by  which  he  was  directed,  nor  the  haven  in  which 
he  looked  for  safety. 


60 


His  learning  was.  great,  and  his  faculty  of  applying  it  of 
the  very  first  order. 

But  it  is  not  by  these  qualities  that  he  is  so  much  distin 
guished  from  the  judges  of  his  time.  In  learning  and  indus 
try,  in  patience,  firmness,  and  fidelity,  he  has  had  his  equals. 
But  there  is  no  judge,  living  or  dead,  whose  claims  are 
disparaged  by  assigning  the  first  place  in  the  department  of 
constitutional  law  to  Chief  Justice  Marshall. 

He  looked  through  the  Constitution  with  the  glance  of 
intuition.  He  had  been  with  it  at  its  creation,  and  had  been 
in  communion  with  it  from  that  hour.  As  the  fundamental 
law,  instituted  by  the  people,  for  the  concerns  of  a  rising 
nation,  he  revolted  at  the  theory  that  seeks  for  possible 
meanings  of  its  language,  that  will  leave  it  the  smallest 
possible  power.  Both  his  judgment  and  affections  bound 
him  to  it  as  a  government  supreme  in  its  delegated  powers, 
and  supreme  in  the  authority  to  expound  and  enforce  them, 
proceeding  from  the  people,  designed  for  their  welfare,  ac 
countable  to  them,  possessing  their  confidence,  representing 
their  sovereignty,  and  no  more  to  be  restrained  in  the  spirit 
of  jealousy,  within  less  than  the  fair  dimensions  of  its  au 
thority,  than  to  be  extended  beyond  them  in  the  spirit  of 
usurpation.  These  were  his  constitutional  principles,  and 
he  interpreted  the  Constitution  by  their  light.  If  it  is  said 
that  they  are  the  same  which  he  held  as  a  follower  of  Wash 
ington,  a  member  of  the  legislature  of  Virginia,  and  of  the 
Congress  of  the  United  States,  when  party  divided  the 
country,  it  is  most  true.  He  was  sincere,  constant  and 
consistent  from  the  beginning  to  the  end  of  his  life.  If  to 
others  it  appeared  that  his  principles  were  meant  for  party, 
he  knew  that  they  were  devoted  to  the  whole  people,  and 
he  received  his  earthly  reward  in  their  ultimate  general 


61 


adoption,  as  the  only  security  of  the  union,  and  of  the  public 
welfare. 

To  these  principles  he  joined  the  most  admirable  powers 
of  reasoning.  When  he  came  to  his  high  office,  hardly  any 
interpretation  of  the  Constitution  could  be  assumed  as  true 
by  force  of  authority.  The  Constitution  is  not  a  subject 
upon  which  mere  authority  is  likely  at  any  time  to  sustain  a 
judicial  construction  with  general  consent.  Reason  is  the 
great  authority  upon  constitutional  questions,  and  the  faculty 
of  reasoning  is  the  only  instrument  by  which  it  can  be  ex 
ercised.  In  him  it  was  perfect,  and  its  work  was  perfect, — 
in  simplicity,  perspicuity,  connection  and  strength.  It  is 
commonly  as  direct  as  possible,  rarely  resorting  to  analogy, 
and  never  making  it  the  basis  or  principal  support  of  the 
argument.  Of  all  descriptions  of  reasoning,  this  when  sound 
is  most  authoritative,  and  such  therefore  are  the  judgments 
upon  the  Constitution  to  which  it  has  been  applied. 

This  is  not  the  place  for  a  particular  reference  to  these 
judgments.  During  the  time  that  he  has  been  upon  the 
bench,  the  court  have  explored  almost  every  question  in  re 
gard  to  the  Constitution  that  can  assume  a  judicial  form. 
The  obligation  of  contracts,  and  that  which  constitutes  its 
essence, — the  restraint  upon  the  issue  of  paper  currency  by 
the  states,— the  authority  of  Congress  to  regulate  trade, 
navigation,  and  intercourse  among  the  states, — those  princi 
ples  and  provisions  in  the  Constitution  which  were  intended 
to  secure  the  rights  of  property  in  each  of  the  states,  and 
their  enjoyment  by  intercourse  among  them  all, — have  been 
investigated,  and  settled  upon  a  basis  not  to  be  shaken  so 
long  as  the  law  shall  retain  any  portion  of  our  regard. 

If  I  were  to  select  any  in  particular  from  the  mass  of  its 


62 


judgments,  for  the  purpose  of  showing  what  we  derive  from 
the  Constitution,  and  from  the  noble  faculties  which  have 
been  applied  to  its  interpretation,  it  would  be  that  in  which 
the  protection  of  chartered  rights  has  been  deduced  from  its 
provisions.  The  case  of  Dartmouth  College  is  the  bulwark 
of  our  incorporated  institutions  for  public  education,  and  of 
those  chartered  endowments  for  diffusive  public  charity, 
which  are  not  only  the  ornaments  but  among  the  strongest 
defences  of  a  nation.  It  raises  them  above  the  reach  of 
party  and  occasional  prejudice,  and  gives  assurance  to  the 
hope,  that  the  men  who  now  live,  may  be  associated  with 
the  men  who  are  to  live  hereafter,  by  works  consecrated  to 
exalt  and  refine  the  people,  and  destined  if  they  endure,  to 
unite  successive  generations  by  the  elevating  sentiment  of 
high  national  character. 

In  a  thousand  ways  the  decisions  of  this  court,  have  given 
stability  to  the  union,  by  showing  its  inseparable  connection 
with  the  security  and  happiness  of  the  people  of  the  United 
States. 

While  we  think  with  just  affection,  my  fellow  citizens,  of 
that  state  at  whose  bosom  we  have  been  nurtured,  whose 
soil  contains  the  bones  of  our  fathers,  and  is  to  receive  our 
own,  and  reverence  her  for  those  institutions  and  laws,  by 
which  life  is  ennobled,  and  its  enjoyments  enlarged,  far 
from  us  be  that  purblind  vision,  which  can  see  nothing  of 
our  country  beyond  the  narrow  circle  in  which  we  stand. 
The  union  is  our  country.  The  government  of  the  union 
is  our  own.  It  breathes  our  breath.  Our  blood  flows  in 
its  veins.  It  is  animated  with  the  spirit  and  it  speaks  the 
voice  of  the  whole  people.  We  have  made  it  the  depository 
of  a  part  of  that  liberty  with  which  the  valour  of  the  revolu 
tion  made  us  free ;  and  we  can  never  review  the  works  of 


63 


this  illustrious  tribunal,  since  Chief  Justice  Marshall  has 
been  at  its  head,  without  gratitude  to  heaven,  that  it  is  the 
guardian  of  that  part,  which  alone  could  enable  us  in  our 
separate  communities  to  destroy  the  value  of  the  rest. 

What  were  the  states  before  the  union?  The  hope  of 
their  enemies,  the  fear  of  their  friends,  and  arrested  only  by 
the  Constitution,  from  becoming  the  shame  of  the  world. 
To  what  will  they  return  when  the  union  shall  be  dissolved  ? 
To  no  better  than  that  from  which  the  Constitution  saved 
them,  and  probably  to  much  worse.  They  will  return  to 
it  with  vastly  augmented  power,  and  lust  of  domination,  in 
some  of  the  states,  and  irremediable  disparity  in  others, 
leading  to  aggression,  to  war,  and  to  conquest.  They  will 
return  to  it,  not  as  strangers  who  have  never  been  allied,  but 
as  brethren  alienated,  embittered,  inflamed  and  irreconcilea- 
bly  hostile.  In  brief  time  their  hands  may  be  red  with  each 
others  blood,  and  horror  and  shame  together  may  then  bury 
liberty  in  the  same  grave  with  the  Constitution.  The  dis 
solution  of  the  union  will  not  remedy  a  single  evil,  and  may 
cause  ten  thousand.  It  is  the  highest  imprudence  to  threaten 
it, — it  is  madness  to  intend  it.  If  the  union  we  have  cannot 
endure,  the  dream  of  the  revolution  is  over,  and  we  must 
wake  to  the  certainty  that  a  truly  free  government  is  too 
good  for  mankind. 

The  decisions  of  the  Supreme  Court  of  the  United  States, 
have  raised  the  renown  of  the  country,  not  less  than  they 
have  confirmed  the  Constitution.  In  all  parts  of  the  world, 
its  judgments  are  spoken  of  with  respect.  Its  adjudications 
of  prize  law,  are  a  code  for  all  future  time.  Upon  com 
mercial  law  it  has  brought  us  nearly  to  one  system,  befitting 
the  probity  and  interests  of  a  great  commercial  nation.  Over 
its  whole  path,  learning  and  intelligence  and  integrity  have 


64 


shed  their  combined  lustre.  But  its  chief  glory  does  and 
ever  will  eradiate  from  those  records,  in  which  it  has  ex 
plained,  defended  and  enforced  the  Constitution.  These  are 
a  great  national  monument  so  complete,  so  ample,  and  so 
harmonious  in  its  parts,  that  if  all  preceding  debates  and 
commentaries  upon  the  Constitution  were  lost,  the  union 
would  still  have  in  the  arguments  of  that  court,  sufficient  to 
elucidate  its  principles  and  limits,  and  to  explain  nearly  all 
that  is  doubtful  in  it. 

The  day  of  Chief  Justice  Marshall's  appointment  will 
ever  be  regarded  as  an  epoch  in  the  history  of  the  Constitu 
tion.  The  rules  of  its  interpretation  were  still  to  be  settled, 
and  the  meaning  of  its  doubtful  clauses  to  be  fixed,  by  that 
authority  which  under  the  Constitution  is  final,  and  some  of 
them  regarded  nothing  less  than  the  action  of  states,  and  the 
government  of  a  nation.  To  have  erred,  would  have  been 
to  throw  into  disorder  and  convulsion  the  movements  of  the 
entire  system.  To  have  been  suspected  of  incompetency, 
would  have  been  to  strike  out  the  department  from  the  hearts 
of  the  people,  and  to  have  left  the  union  without  a  judiciary. 
What  greater  responsibility  ever  rested  upon  the  judgments 
of  a  court?  What  greater  triumph  to  human  intellect  and 
virtue,  than  effectually  to  accomplish  so  great  a  work  ?  What 
nobler  destiny  than  to  be  qualified  and  appointed  for  the  ser 
vice  ?  What  eulogy  is  equal  to  so  great  a  name,  as  that  of  the 
man,  who  gave  the  last  sands  of  life  to  his  eightieth  year  in 
completing  so  much  of  it,  and  in  tracing  the  plan  of  all  that 
is  to  be  done  hereafter  ?  Let  it  not  be  supposed  that  I  claim 
for  him  the  exclusive  merit.  His  modesty  would  reject  it. 
Justice  withholds  it.  He  has  had  by  his  side  men  now 
resting  from  their  labours  like  himself,  and  men  still  living 
to  continue  them,  who  have  contributed  by  their  talents  and 
learning  to  all  that  has  been  done,  and  will  ever  be  honoured 


65 


for  it  by  their  country.  But  it  is  both  their  praise  and  his, 
that  they  have  improved  their  own  powers  by  the  inspiration 
of  his  wisdom,  and  have  been  raised  to  their  eminence,  in 
part,  by  the  attraction  of  his  example.  In  him  his  country 
have  seen  that  triple  union  of  lawyer,  statesman,  and  patriot, 
which  completes  the  frame  of  a  great  constitutional  judge; 
and  if  we  add  to  it  "the  heart  of  the  wise  man,"  inspired 
with  the  love  of  God,  of  country,  and  of  mankind,  and 
showing  it  in  the  walks  of  private  life,  as  well  as  on  the 
judgment  seat,  while  we  have  that  which  the  course  of  the 
world  very  rarely  exhibits,  we  have  no  more  than,  for  the  ex 
ample  of  the  world,  has  been  bestowed  upon  our  country. 

When  the  venerable  life  of  the  Chief  Justice  was  near  its 
close,  he  was  called  in  the  75th  year  of  his  age,  to  give,  his 
parting  counsel  to  his  native  state  in  the  revision  of  her 
Constitution.  A  spectacle  of  greater  dignity  than  the  Con 
vention  of  Virginia  in  the  year  1829,  has  been  rarely  ex 
hibited.  At  its  head  was  James  Monroe,  conducted  to  the 
chair  by  James  Madison  and  John  Marshall,  and  surrounded 
by  the  strength  of  Virginia,  including  many  of  the  greatest 
names  of  the  union.  The  questions  to  be  agitated  were  of 
the  last  importance  to  the  people  of  that  state,  and  divided 
them,  as  they  were  never  before  divided  in  any  period  of 
their  history.  The  basis  of  representation,  and  the  tenure 
of  judicial  office,  the  former  in  by  far  the  greater  degree,  were 
the  occasion  of  fearful  collisions  in  the  convention,  threaten 
ing  to  break  up  the  body  into  irreconcileable  parties,  and  to 
spread  the  flames  of  civil  discord  through  the  state.  It  cannot 
be  doubted  that  the  presence  and  wisdom  of  these  venerable 
persons,  assuaged  the  violence  of  the  contest,  and  contributed 
to  reduce  the  general  temper  to  that  tone  of  compromise  and 
mutual  concession  in  which  the  tranquillity  of  a  diversified 
people  can  alone  be  found.  The  reverence  manifested  for 


(5(5 


Chief  Justice  Marshall,  was  one  of  the  most  beautiful  features 
of  the  scene.  The  gentleness  of  his  temper,  the  purity  of 
his  motives,  the  sincerity  of  his  convictions,  and  his  wisdom, 
were  confessed  by  all.  This  was  indeed  a  homage  worthy 
of  his  virtue,  and  of  the  eminent  men  who  paid  it.  He  stood 
in  the  centre  of  his  native  state,  in  his  very  home  of  fifty 
years,  surrounded  by  men  who  had  known  him  as  long  as 
they  had  known  any  thing,  and  there  was  no  one  to  rise  up, 
even  to  question  his  opinions,  without  a  tribute  to  his  per 
sonal  excellence.  He  spoke  upon  both  the  great  questions, 
with  brevity,  and  with  no  less  than  his  usual  power,  con 
sistently  maintaining  opinions  which  he  had  cherished  from 
the  outset  of  his  life ;  but  he  was  the  counsellor  of  peace, 
and  in  the  spirit  of  religious  charity,  regarded  with  catholic- 
good  will  those  who  differed  from  him.  Upon  one  occasion 
he  said — "  after  the  warm  language  (to  use  the  mildest 
phrase)  which  has  been  mingled  with  argument  on  both 
sides,  I  heard  with  inexpressible  satisfaction,  propositions 
for  compromise  proposed  by  both  parties  in  the  language  of 
conciliation.  I  hailed  these  auspicious  appearances  with  as 
much  joy,  as  the  inhabitant  of  the  polar  regions  hails  the 
re-appearance  of  the  sun  after  his  long  absence  of  six  tedious 
months." — This  was  the  affection  of  his  heart;  but  the 
spirit  of  his  understanding  still  divided  truth  from  error,  by 
a  line  as  bright  and  distinct,  as  in  the  clearest  hour  of  his 
meridian  day.  It  was  particularly  on  the  question  of  judi 
cial  tenure,  the  subject  upon  which  he  could  speak  after 
probably  more  personal  reflection  and  observation  than  any 
man  living,  that  he  poured  out  his  heart-felt  convictions  with 
an  energy  that  belongs  to  nothing  but  truth.  The  proposed 
Constitution,  while  it  adopted  for  the  judges  of  the  Superior 
Courts  the  tenure  of  good  behaviour,  guarded  by  a  clause 
against  the  construction  which  had  in  one  instance  prevailed, 
that  the  repeal  of  the  law  establishing  the  court,  and  by  a  mere 


67 

majority,  should  dissolve  the  tenure,  and  discharge  the  judge 
upon  the  world.     In  support  of  this  clause,  which  was  pro 
posed  by  himself,  and  of  the  general  principle  of  judicial 
independence,  he  spoke  with  the  fervour  and  almost  with 
the  authority  of  an  apostle.     "The  argument  of  the  gentle 
man,  he  said,  goes  to  prove  not  only  that  there  is  no  such 
thing  as  judicial  independence,  but  that  there  ought  to  be  no 
such  thing: — that  it  is  unwise  and  improvident  to  make  the 
tenure  of  the  judge's  office  to  continue  during  good  behaviour. 
I  have  grown  old  in  the  opinion  that  there  is  nothing  more 
dear  to  Virginia,  or  ought  to  be  more  dear  to  her  statesmen, 
and  that  the  best  interests  of  our  country  are  secured  by  it. 
Advert,  sir,  to  the  duties  of  a  judge.  He  has  to  pass  between 
the  government,  and  the  man  whom  that  government  is  pro 
secuting, — between   the   most  powerful   individual  in   the 
community,  and  the  poorest  and  most  unpopular.     It  is  of 
the  last  importance,  that  in  the  performance  of  these  duties, 
he  should  observe  the  utmost  fairness.     Need  I  press  the 
necessity  of  this?  Does  not  every  man  feel  that  his  own 
personal  security,  and  the  security  of  his  property,  depends 
upon  that  fairness.     The  judicial  department  comes  home 
in  its  effects  to  every  man's  fire  side ;— it  passes  on  his  pro 
perty,  his  reputation,  his  life,  his  all.     Is  it  not  to  the  last 
degree  important,  that  he  should  be  rendered  perfectly  and 
completely  independent,  with  nothing  to  control  him  but 
God  and  his  conscience."      "I  acknowledge  that  in  my 
judgment,  the  whole  good  which  may  grow  out  of  this  con 
vention,  be  it  what  it  may,  will  never  compensate  for  the 
evil  of  changing  the  judicial  tenure  of  office."     "I  have 
always  thought  from  my  earliest  youth  till  now,   that  the 
greatest  scourge  an  angry  heaven  ever  inflicted  upon  an  un 
grateful  and  a  sinning  people,  was  an  ignorant,  a  corrupt,  or  a 
dependent  judiciary." 


68 


These  sentiments  are  worthy  of  the  profoundest  consider 
ation.  They  were  the  last  legacy  of  his  political  wisdom, 
from  an  incorruptible  patriot,  and  one  of  the  wisest  of  men. 
Standing  as  it  were  on  the  verge  of  life,  free  from  all  mix 
ture  and  stain  of  selfish  motive,  having  nothing  to  hope, 
nothing  to  fear  from  men,  they  are  the  parting  testimony  of 
his  pure  and  disciplined  reason.  They  are  worthy  of  being 
written  on  the  tables  of  the  heart ;  and  if  elsewhere  they 
may  be  disregarded  in  the  spirit  of  change,  or  in  the  lust  of 
experiment,  let  them  animate  us  to  preserve  what  we  have, 
and  to  transmit  it  to  our  children. 

Fellow  Citizens,  this  admirable  man,  extraordinary  in  the 
powers  of  his  mind,  illustrious  by  his  services,  exalted  by 
his  public  station,  was  one  of  the  most  warm  hearted,  una£- 
suming,  and  excellent  of  men.  His  life,  from  youth  to  old 
age,  was  one  unbroken  harmony  of  mind,  affections,  princi 
ples,  and  manners.  His  kinsman  says  of  him — "  He  had 
"  no  frays  in  boyhood.  He  had  no  quarrels  or  outbreak- 
"  ings  in  manhood.  He  was  the  composer  of  strifes.  He 
"  spoke  ill  of  no  man.  He  meddled  not  with  their  affairs. 
"  He  viewed  their  worst  deeds  through  the  medium  of  cha- 
"  rity.  He  had  eight  sisters  and  six  brothers,  with  all  of 
"  whom,  from  youth  to  age,  his  intercourse  was  marked  by 
"  the  utmost  kindness  and  affection ;  and  although  his  emi- 
"  nent  talents,  high  public  character,  and  acknowledged  use- 
"  fulness,  could  not  fail  to  be  a  subject  of  pride  and  admi- 
"  ration  to  all  of  them,  there  is  no  one  of  his  numerous 
"  relations,  who  has  had  the  happiness  of  a  personal  associ- 
"  ation  with  him,  in  whom  his  purity,  simplicity  and  af- 
"  fectionate  benevolence,  did  not  produce  a  deeper  and  more 
"  cherished  impression,  than  all  the  achievements  of  his 
"  powerful  intellect."  Another  of  his  intimate  personal 
friends  has  said  of  him,  "In  private  life  he  was  upright  and 


69 


"  scrupulously  just  in  all  his  transactions.  His  friendships 
"  were  ardent,  sincere  and  constant,  his  charity  and  bcnevo- 
"  lence  unbounded.  He  was  fond  of  society,  and  in  the 
"  social  circle,  cheerful  and  unassuming.  He  participated 
"  freely  in  conversation,  but  from  modesty  rather  followed 
"  than  led.  Magnanimous  and  forgiving,  he  never  bore 
"  malice,  of  which  illustrious  instances  might  be  given.  A 
"  republican  from  feeling  and  judgment,  he  loved  equality, 
"  abhorred  all  distinctions  founded  upon  rank  instead  of 
"  merit,  and  had  no  preference  for  the  rich  over  the  poor. 
"  Religious  from  sentiment  and  reflection,  he  was  a  chris- 
"  tian,  believed  in  the  gospel,  and  practised  its  tenets." 
This  is  the  unbought  praise  of  deep  affection  and  intimate 
knowledge.  It  finishes  his  character  in  all  his  relations. 

That  with  which  a  stranger  was  most  struck  in  a  first  in 
terview,  was  the  charm  of  his  most  engaging  simplicity.  The 
reputation  of  his  remarkable  powers  of  mind  was  coextensive 
with  our  country.  Every  one  who  approached  him  for  the 
first  time,  was  prepared  to  find  something  in  the  carriage  of 
his  person,  the  tones  of  his  voice,  or  the  strain  of  his  conversa 
tion,  which  should  distinguish  him  as  much  from  men  in 
general,  as  he  was  raised  above  them  by  his  station  and  intel 
lect.  But  although  these  were  extremely  attractive  and  highly 
suitable,  they  did  not  display  his  mind  so  much  as  the  be 
nignity  of  his  heart.  There  was  in  his  daily  manners  an 
unconsciousness  of  what  he  was,  or  how  he  was  estimated, 
and  a  freedom  from  effort,  affectation  and  pretension,  which 
makes  the  inscription  he  prepared  for  his  monumental  tablet, 
a  perfect  representation  of  the  simplicity  of  him  that  lies 
beneath  it.  It  records  no  more  than  his  name  and  that  of 
his  deceased  wife,  with  the  date  of  his  birth  and  marriage, 
and  leaves  a  blank  for  the  year  and  day  of  his  death. 


70 


The  world,  my  fellow  citizens,  has  produced  fewer  in 
stances  of  truly  great  judges,  than  it  has  of  great  men  in 
almost  every  other  department  of  civil  life.  A  large  portion 
of  the  ages  that  are  past,  have  been  altogether  incapable  of 
producing  this  excellence.  It  is  the  growth  only  of  a 
government  of  laws,  and  of  a  political  Constitution  so  free 
as  to  invite  to  the  acquisition  of  the  highest  attainments,  and 
to  permit  the  exercise  of  the  purest  virtues,  without  expo 
sure  to  degradation  and  contempt,  under  the  frown  of  power. 
The  virtues  of  a  prince  may  partially  correct  the  mischiefs 
of  arbitrary  rule,  and  we  may  see  some  rare  examples  of 
judicial  merit,  where  the  laws  have  had  no  sanction,  and 
the  government  no  foundation,  but  in  the  uncontrolled  will 
of  a  despot;  but  a  truly  great  judge  belongs  to  an  age  of 
political  liberty,  and  of  public  morality,  in  which  he  is  the 
representative  of  the  abstract  justice  of  the  people  in  the  ad 
ministration  of  the  law,  and  is  rewarded  for  the  highest 
achievements  of  duty,  by  proportionate  admiration  and  re 
verence.  Of  all  the  constitutions  of  government  known  to 
man,  none  are  so  favourable  to  the  development  of  judicial 
virtue,  as  those  of  America.  None  else  confide  to  the 
judges  the  sacred  deposit  of  the  fundamental  laws,  and  make 
them  the  exalted  arbiters  between  the  Constitution  and  those 
who  have  established  it.  None  else  give  them  so  lofty  a 
seat,  or  invite  them  to  dwell  so  much  above  the  impure  air 
of  the  world,  the  tainted  atmosphere  of  party  and  of  passion. 
None  else  could  have  raised  for  the  perpetual  example  of 
the  country,  and  for  the  crown  of  undying  praise,  so  truly 
great  a  judge  as  JOHN  MARSHALL. 


THE  END. 


ERRATUM.— In  page  36,  line  15  from  top,  for  "  John  Marshall  will 
ever  stand  the  first  and  most  illustrious,"  read,  "John  Marshall  will  ever 
stand  among  the  first  and  most  illustrious." 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


6Dec'80tU 


REC'D  LD 


DEC  ?    WS 


AY  .24  1979 


Jg«g«a 

.. 


CIS,    jfjpj      g 


JAN  1  4 


THE  UNIVERSITY  OF  CALIFORNIA  LIBRARY 


